ADVISORY COUNCIL OF JURISTS

CONSIDERATION OF THE ISSUE OF

TRAFFICKING

BACKGROUND PAPER

11 – 12 November 2002
New Delhi, India
 CONTENTS

ACKNOWLEDGEMENTS................................................................................................ 3
PREFACE ........................................................................................................................... 4
INTRODUCTION .............................................................................................................. 7
PART ONE: DESCRIPTION OF THE PROBLEM ........................................................ 10
1.1 Defining Trafficking ....................................................................................... 10
1.2 Trafficking Fact Patterns ............................................................................... 12
1.3 Links, Causes and Consequences .................................................................. 16
1.1.1. The Emigration Push................................................................................. 16
1.1.2. The Immigration Pull................................................................................ 18
1.1.3. The Impact of Emigration and Immigration Restrictions ......................... 20
1.1.4. The Organized Crime and Globalization Connections ............................. 21
PART TWO: INTERNATIONAL LAW AND TRAFFICKING .................................... 23
2.1 The Issue of State Responsibility for Trafficking ........................................ 23
2.2 Human Rights Law ......................................................................................... 25
2.2.1 The rights of non-nationals ....................................................................... 25
2.2.2 The international prohibition on slavery and servitude ............................ 27
2.2.3 The prohibition on trafficking, forced prostitution and forced marriage.. 32
2.2.4 The Prohibition on forced and compulsory labor ..................................... 35
2.2.5 Debt Bondage............................................................................................ 37
2.2.6 Violence against women ........................................................................... 37
2.2.7 Trafficking in and related exploitation of children ................................... 39
2.2.8 The rights of trafficked persons as migrants and migrant workers........... 42
2.2.9 Other relevant rights including economic, social and cultural rights ....... 45
2.3 International Refugee law .............................................................................. 47
2.4 Developments in International Humanitarian Law and International
Criminal law ................................................................................................................ 49
PART THREE: RECENT LEGISLATIVE AND POLICY INITIATIVES .................... 51
3.1 The 2000 Palermo Trafficking Protocol ....................................................... 51
3.1.1 Scope and Purpose of the Protocol ........................................................... 52
3.1.2 The Definition of Trafficking ................................................................... 52
3.1.3 The issue of child trafficking .................................................................... 53
3.1.4 Protection of Trafficked Persons .............................................................. 53
3.1.5 Status and Repatriation ............................................................................. 54
3.1.6 Law Enforcement and Border Control...................................................... 55
3.1.7 Preventing Trafficking .............................................................................. 56
3.1.8 Relationship with the Migrant Smuggling Protocol ................................. 56
3.1.9 Evaluation of the Trafficking Protocol ..................................................... 58
3.2 The SAARC Convention ................................................................................ 59
3.2.1 Drafting History ........................................................................................ 59
3.2.2 Overview of key provisions ...................................................................... 60
3.2.3 Evaluation of the Convention ................................................................... 61

1
 3.3 The Recommended Principles and Guidelines on Human Rights and
Human Trafficking issued by the UN High Commissioner for Human Rights .... 64
3.3.1 Background and context ........................................................................... 64
3.3.2 The Principles on Human Rights and Human Trafficking ....................... 65
3.3.3 Overview of the Guidelines ...................................................................... 67
3.3.4 The relative significance of the Principles and Guidelines....................... 69
PART FOUR: NATIONAL SITUATIONS AND RESPONSES TO TRAFFICKING IN
REGIONAL COUNTRIES WITH NATIONAL HUMAN RIGHTS INSTITUTIONS.. 69
4.1 Australia........................................................................................................... 70
4.2 Fiji..................................................................................................................... 72
4.3 Indonesia.......................................................................................................... 73
4.4 India ................................................................................................................. 74
4.5 Malaysia ........................................................................................................... 79
4.6 Mongolia .......................................................................................................... 81
4.7 Nepal................................................................................................................. 82
4.8 New Zealand .................................................................................................... 84
4.9 Philippines ....................................................................................................... 85
4.10 Republic of Korea ........................................................................................... 87
4.11 Sri Lanka ......................................................................................................... 88
4.12 Thailand ........................................................................................................... 89
PART FIVE: CONCLUSIONS AND POSSIBLE RECOMMENDATIONS.................. 92
5.1 Conclusions on the international legal issues ............................................... 92
5.2 Possible Recommendations for further action by national human rights
institutions to prevent trafficking and protect the rights of trafficked persons. .. 93
5.2.1 Educating about human rights and human trafficking.............................. 93
5.2.2 Monitoring and advising governments ..................................................... 94
5.2.3 Investigating human rights issues connected to trafficking...................... 96
5.2.4 Working together ...................................................................................... 96
ANNEX 1: Terms of Reference for Consideration of the Issue of Trafficking by the
Advisory Council of Jurists of the Asia Pacific Forum of National Human Rights
Institutions......................................................................................................................... 98
ANNEX 2: Terms of Reference of the Advisory Council of Jurists of the Asia Pacific
Forum of National Human Rights Institutions................................................................ 101
ANNEX 3: Concluding Statement of the Asia Pacific Forum of National Human Rights
Institutions Sixth Annual Meeting .................................................................................. 105
ANNEX 4: Table of Legal Obligations .......................................................................... 110
ANNEX 5: Chart of Ratifications................................................................................... 121
ANNEX 6: Palermo Trafficking Protocol ...................................................................... 124
ANNEX 7: SAARC Convention .................................................................................... 137
ANNEX 8: UN High Commissioner’s Recommended Principles and Guidelines on
Human Rights and Human Trafficking........................................................................... 146

2
ACKNOWLEDGEMENTS

This background paper, with the exception of Part IV, was solely authored by Anne
Gallagher, United Nations official and former Adviser on Trafficking to Mary Robinson,
the former UN High Commissioner for Human Rights. The opinions expressed in this
paper are those of the author and do not necessarily reflect the views of the United
Nations or the Secretariat of the Asia Pacific Forum of National Human Rights
Institutions.

Part IV was prepared by Kate Fitzgerald of the Secretariat of the Asia Pacific Forum. The
Table of Legal Obligations contained in Annex 4 was developed by Joanna Bourke-
Martigny and Anne Gallagher.

3
PREFACE

At a meeting held in Darwin, Australia in July 1996, representatives of the national

human rights institutions of Australia, India, Indonesia and New Zealand agreed to the
establishment of the Asia Pacific Forum of National Human Rights Institutions (APF).
The national human rights institutions of the Philippines1, Sri Lanka2, Fiji3, Nepal4 and
Mongolia5 have also become members of the Forum.

The objectives of the APF as set out in the Larrakia Declaration6 include:

To respond where possible with personnel and other support to requests from
governments in the region for assistance in the establishment and development of
national institutions;

To expand mutual support, co-operation and joint activity among member

institutions through:

• information exchanges
• training and development of joint positions on issues of common concern
• undertaking joint projects
• sharing expertise
• periodical regional meetings
• specialist regional seminars on common themes and needs; and

To develop regional cooperation on human rights.

At the Third Annual Meeting of the Forum in Indonesia in September 1998, Forum
members established an Advisory Council of Jurists (ACJ) to provide national human
rights institutions in the region with jurisprudential guidance on contemporary human
rights issues.7 At the inaugural meeting of the Advisory Council of Jurists held in

1
Admitted following the First Asia Pacific Regional Workshop of National Human Rights Institutions,
Darwin, Australia, 1996.
2
Admitted at the Second Annual Meeting of the Asia Pacific Forum of National Human Rights Institution,
New Delhi, India, 1997.
3
Admitted at the Fourth Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions,
Manila, the Philippines, 1999.
4
Admitted at the Fifth Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions,
Rotorua, New Zealand, 2000.
5
Admitted at the Sixth Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions,
Colombo, Sri Lanka, 2001.
6
‘Larrakia Declaration: Conclusions, recommendations and decisions’, First Asia Pacific Regional
Workshop of National Human Rights Institutions, Darwin, Australia, 1996.

4
Rotorua, New Zealand in 2000, two references were considered on issues relating to the
death penalty and child pornography on the internet. At the Sixth Annual Meeting held in
Colombo, Sri Lanka in September 2001 the members of the APF:

• agreed to consider a reference on the issue of trafficking to the Advisory

Council of Jurists; and
• requested the Secretariat to develop a proposal for such a reference for
consideration by Forum members between meetings.8

In May 2002 a draft terms of reference was distributed to Forum members for comment.
The terms of reference subsequently adopted by Forum members is as follows:

TERMS OF REFERENCE

The Asia Pacific Forum of National Human Rights Institutions refers to the Advisory
Council of Jurists for advice and recommendation regarding the nature and scope of
State’s obligation under international law, including international human rights law, to
prevent trafficking, investigate and prosecute traffickers, and provide protection,
assistance and redress to trafficked persons.

In particular the Council is to consider:

(i) The nature and scope of state responsibility for trafficking and related conduct
taking into account that much trafficking activity is undertaken by non-state
entities;
(ii) Whether international law requires States to criminalize, investigate and
punish trafficking and related conduct.
(iii) Whether international law prevents the detention or prosecution of trafficked
persons for their unwilling or coerced involvement in unlawful activities;
(iv) Whether international law requires States to provide legal and social
assistance to trafficked persons;
(v) Whether international law prevents the compulsory testing of trafficked
persons for HIV/AIDS and other diseases;
(vi) Whether international law prevents States from summarily deporting or
returning a trafficked person when such deportation or return poses a serious
and verifiable risk to the safety of the trafficked person and/or that person’s
family;
(vii) The nature and extent of States’ obligation to take active and timely steps to
identify trafficked persons from among vulnerable groups such as irregular
migrants;

7
‘Report of the Third Meeting of the Asia Pacific Forum of National Human Rights Institutions’, Jakarta,
Indonesia, 1998.
8
Asia Pacific Forum of National Human Rights Institutions, ‘Concluding Statement of the Sixth Annual
Meeting’, Colombo, Sri Lanka, 2001.

5
 (viii) The nature of special protections which should be extended to trafficked
children in accordance with international law;
(ix) Whether trafficking should constitute an extraditable offence and thereby be
included as such in bilateral and multilateral extradition treaties;
(x) The extent to which international law permits the development and
implementation of extraterritorial measures aimed at preventing trafficking
and apprehending traffickers;
(xi) The nature of States’ obligations, under international law, to provide
trafficked persons with access to effective and appropriate remedies.
(xii) The extent to which the SAARC Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution (as the only directly
relevant regional instrument) provides an adequate framework for responding
to the problem of trafficking

The Council may comment upon:

(i) the socio-economic, political and legal environments in Forum Member

States;
(ii) the religious and cultural traditions in Forum Member States;
(iii) the roles to be served by a criminal justice system; and
(iv) the international legal obligations of each Member State, including duties of
cooperation between Member States.

International human rights law includes but is not limited to the:

• Universal Declaration of Human Rights;

• International Covenant on Civil and Political Rights;
• International Covenant on Economic, Social and Cultural Rights;
• Convention on the Rights of the Child and its relevant Optional Protocol;
• Convention Concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forums of Child Labor (ILO No. 182)
• Convention on the Elimination of All Forms of Discrimination against
Women;
• United Nations Protocol to Suppress, Prevent and Punish Trafficking in
Persons especially Women and Children supplementing the Convention
against Transnational Organized Crime;
• SAARC Convention on Combating Trafficking in Women and Children for
Prostitution.

This report will be considered by the Advisory Council of Jurists at the second meeting of
the Council to be held in New Delhi, India, from 11-12 November 2002.

6
INTRODUCTION

Each year, an unknown number of individuals enter the international migration process
only to be tricked, sold, coerced or otherwise procured into situations of exploitation from
which they cannot escape. Many are physically detained. Others are intimidated in less
direct but no less effective ways. Perhaps the majority are tied to their situations through
debt-servicing agreements which amount to little more than bondage. These individuals
are the commodities of a multi-billion dollar global industry, which, in many parts of the
world is dominated by highly organized criminal groups who operate with impunity.
Increasing economic hardship, onerous obstacles to legal migration and internal conflict
has coincided with a reported rise in the number of cases of trafficking in all regions of
the world as well as a spreading of the problem to areas which were previously less
affected.

The issue of trafficking – particularly as it affects women and children - is now high on
the international political agenda. Both the United Nations (UN) Secretary General and
the High Commissioner for Human Rights have singled out trafficking as one of the
major human rights challenges of the twenty-first century9. A global treaty against
trafficking was recently concluded under the auspices of the UN Commission on Crime
Prevention and Criminal Justice10. The Council of Ministers of the European Union, the
Parliamentary Assembly of the Council of Europe and the Parliamentary Assembly of the
Organization for Security and Co-operation in Europe (OSCE) have all issued directives,
recommendations and resolutions on the subject11. The first-ever, regional anti-
trafficking treaty was recently drafted under the auspices of the South Asian Association
for Regional Cooperation (SAARC)12. From 1999, a special section on ‘trafficking” has
been included in every country chapter of the United States (US) State Department’s
Country Reports on Human Rights Practices.13 Many countries have recently amended or
9
For a current overview of the work of the UN (including the Office of the High Commissioner for Human
Rights) on trafficking, see the report of the Secretary General to the Commission on Human Rights,
“Traffic in Women and Girls”, UN Doc. E/CN.4/2002/80.
10
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the UN Convention Against Transnational Organized Crime, 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, UN Doc. A/55/383 (2000), Annex II, reprinted in annexes. [Hereafter: Trafficking
Protocol].
11
For the texts of these instruments and documents, see Council of Europe, Trafficking in Human Beings:
Compilation of the main Legal Instruments and Analytical Reports Dealing with Trafficking in Human
Beings at International, Regional and national Levels, Volume 1, International and Regional Texts, 2000,
especially at pages 91-193.
12
SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution
(2002), reprinted in annexes. [Hereafter: SAARC Convention].
13
From 2000, the State Department has also been issuing a separate report on trafficking - ranking
countries according to the efforts they are seen to be making towards eliminating this trade. The 2001 and
2002 reports are available from www.state.gov. [2002 Report hereafter: US Trafficking Report] For a
critical review of the first report, see Anne Gallagher, US State Department, 2001 Report on Trafficking,
234 HUMAN RIGHTS QUARTERLY (2001).

7
adopted legislation aimed at preventing trafficking, punishing traffickers and protecting
victims.

While human rights figure prominently in trafficking discourse, it is the connection

between trafficking and migration − particularly illegal labor migration − which is the
driving political force behind international anti-trafficking efforts. Opportunities for
lawful migration to the preferred destinations have dramatically diminished at the same
time as individuals are moving further, faster and in far greater numbers than ever before.
This discordance, between the number of individuals who wish to migrate and the legal
opportunities for them to do so, has created a demand which is currently being filled by
traffickers and migrant smugglers operating in increasingly organized, sophisticated and
successful ways.

The growing inability of States to control their borders through unilateral action has
prompted an unprecedented level of international cooperation on the issues of trafficking
and migrant smuggling. The overwhelming emphasis of such cooperation has been on
improved border control and enhanced law enforcement. From the perspective of
powerful countries of destination, trafficking and migrant smuggling are, first and
foremost, problems of migration, of public order, and of transnational organized crime. In
the case of trafficking, one direct result of this perception has been the removal of this
issue from within the human rights framework to which it traditionally belonged. The fact
that negotiations for a new international agreement on trafficking took place outside the
human rights system − under the auspices of the UN’s Commission on Crime Prevention
and Criminal Justice − is a telling example of this trend. When human rights are not the
starting point or common reference, they tend to get left behind. It is therefore not
surprising that attempts to integrate a rights perspective into recent legal and policy
initiatives have been only partly successful. It would be untrue to say that States are not
willing to protect the rights of trafficked persons and smuggled migrants. However, such
protection often appears only acceptable to the extent that it does not compromise the
principal policy objective of maintaining border integrity.

The lack of clarity on the issue of trafficking within international human rights law has
provided another obstacle to the incorporation of a human rights perspective. Despite
more than a century of law-making, many fundamental questions are only now beginning
to be answered. What exactly is trafficking and how is it to be distinguished from migrant
smuggling? Does trafficking fall within the international legal prohibition on slavery?
What is the relevance of other international prohibitions, such as those against debt
bondage, forced labor and exploitation of prostitution? Is there a connection to be made
between trafficking and evolving norms relating to migrant workers and violence against
women? How can States be held accountable under international law for trafficking
involving their nationals or taking place within their territories? What are the precise
obligations upon States with respect to preventing trafficking, prosecuting traffickers and
protecting the rights of trafficked persons? Can non-State entities, including individuals
and legal persons, be held responsible under international law for trafficking in persons?

8
The gender and race dimensions of the debate also deserve attention. Trafficking is not
just of interest to governments. It has succeeded in igniting the passionate concern of
feminist activists, religious organizations and human rights groups. Governmental and
non-governmental forces have joined with an increasingly prurient media in promoting a
stereotype of the trafficking victim which emphasises her foreignness, innocence and
ignorance. For every victim there must be a villain and, in this case, third world
governments and alien criminal gangs are singled out. Despite growing evidence of a
more complicated reality, little attempt has been made to challenge the validity of these
stereotypes; to analyse trafficking within the broader context of the global economy and
the feminization of third world labour migration; or to identify the repressive
consequences for women of anti-trafficking strategies based on dubious constructions of
the problem.

This paper attempts to address the main legal issues set out above, thereby to provide the
background and context for the ACJ to consider the specific questions set out in its terms
of reference. This is done by undertaking a comprehensive review and appraisal of
international law with respect to trafficking with a particular emphasis on international
human rights law. The paper is divided into five substantive Parts. Part One provides the
framework for the study by examining definitional and methodological issues before
attempting to construct an overview of trafficking fact patterns and causes with a special
focus on the Asia Pacific region. Part Two examines the place of trafficking in
international law. This part considers, in turn, the issue of state responsibility for
trafficking; human rights and refugee law; and relevant international humanitarian law
and criminal law. Part Three examines recent legislative and policy initiatives of direct
relevance to the issues before the ACJ. These include the new Trafficking Protocol
supplementing the UN Convention against Transnational Organized Crime14; the SAARC
Convention on Preventing and Combating Trafficking in Women and Children for
Prostitution15, referred to above; and the Recommended Principles and Guidelines on
Human Rights and Human Trafficking, recently released by the UN High Commissioner
for Human Rights16. Parts Two and Three are supplemented by a detailed table of
international legal standards relevant to trafficking which is included in the present report
as Annex 5. In Part Four, national situations and responses to trafficking in countries
within the Asia Pacific Region that have established national human rights institutions
(also referred to as Commissions) are examined. Part Five contains conclusions on the
international legal issues as well as recommendations for further action by national
human rights institutions to prevent trafficking and protect the rights of trafficked
persons. A comprehensive collection of appendices is also attached.

14
Trafficking Protocol, supra note 10.
15
SAARC Convention, supra note 12.

16
Report of the High Commissioner for Human Rights to the Economic and Social Council, addendum:
Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN Doc
E/2002/68/Add.1, reprinted in annexes. [Hereafter: Trafficking Principles and Guidelines]

9
PART ONE: DESCRIPTION OF THE PROBLEM

1.1 Defining Trafficking

Until December 2000, the term “trafficking” had never been precisely defined in
international law despite its inclusion in a number of international legal agreements
including some of the first human rights treaties. The on-going failure to develop an
agreed definition of trafficking reflected major differences of opinion concerning the
ultimate end result of trafficking, its constitutive acts and their relative significance.
Various definitions proposed and adopted tended to reflect the priorities and perspectives
of their promoters. For example, an organization concerned with orderly migration
naturally emphasized the migration aspects of trafficking. One concerned with the human
rights of women tended to place women at the centre of the definition and identify human
rights violations as the critical defining factor. It was also clear that those seeking to
advance the cause of women working in prostitution preferred a different definition of
trafficking to those who consider all forms of prostitution intolerable. Until very recently
the terms “trafficking” and “smuggling” were often used interchangeably by governments
and international organizations17.

In 1994, the General Assembly of the UN referred to trafficking as:

“the illicit and clandestine movement of persons across national and

international borders... with the end goal of forcing women and girl-children into
sexually or economically oppressive and exploitative situations for the profit of
recruiters, traffickers, crime syndicates as well as other illegal activities related
to trafficking such as forced domestic labor, false marriage, clandestine
employment and forced adoption”18.

Five years later, the UN Crime Commission took up the spirit of this definition by
proposing a distinction be made between trafficking on the one hand, and migrant
smuggling on the other. Smuggling of migrants has now been defined as:

“… 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”19.

17
The confusion between trafficking and migrant smuggling, even at the highest political levels, has not
disappeared with the adoption of an agreed definition. The recent Bali Ministerial Conference on
Trafficking in Persons and Related Transnational Crimes, convened by the Governments of Australia and
Indonesia in February, 2002, provided numerous instances of inappropriate and incorrect use of these two
terms.
18
General Assembly resolution 49/166 of 23 December, 1994.
19
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention
against Transnational Organized Crime, 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, UN Doc.
A/55/383 (2000), Annex III, [hereinafter: Migrant Smuggling Protocol]. Article 3 (a).

10
 Trafficking in persons is defined as:

“ … the recruitment, transportation, transfer, harboring or receipt of persons, by

means of the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent of a person
having control over another person for the purposes of exploitation. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labor or services, slavery or practices similar
to slavery, servitude or the removal of organs”20.

Through the work of the UN Crime Commission, the international community has now
decided that trafficking means much more than the organized movement of persons for
profit. The critical, additional factor separating trafficking from migrant smuggling is the
presence of force or coercion throughout or at some stage in the process – that force or
coercion being for the purpose of exploitation. It appears, therefore, that an individual
who pays a group or organization to facilitate his or her illegal entry into a State will be
considered, prima facie, a smuggled migrant. This will be the case even if that person
was misled about the dangers of the journey and irrespective of the treatment she or he
receives at the hands of smugglers provided there is consent to the original transport and
provided an exploitative relationship does not develop or was not envisaged between the
two parties. Similarly, the organized and illegal cross-border movement of an individual
for purposes of prostitution will not be considered trafficking in the absence of coercion –
that coercion being specifically directed at securing the exploitation of the individual. The
only situation in which non-coerced movement will be considered trafficking is when the
individual involved is a child21.

While helpful, such distinctions are certainly not foolproof. It is apparent from the above
analysis that trafficking differs from migrant smuggling in a number of important
respects. In addition to the coercion element, the principle differences include: time frame
(long term relationship vs short-term relationship); goal (exploitation vs facilitated illegal
entry); and profit source (transportation fees and/or subsequent exploitation vs
transportation fees alone). In practice however, the terms “trafficking” and “migrant
smuggling” do not refer to one event but to a series of constitutive acts and
circumstances. For example, it is not only possible, but increasingly common for an
individual to begin a journey as a smuggled migrant – only to be forced, at journey’s end,
into an exploitative situation falling squarely within the trafficking definition as set out

20
Trafficking Protocol, supra note 10, Article 3 (a). The Protocol further states that: The recruitment,
transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered
“trafficking in persons” even if this does not involve any of the means set forth in sub-paragraph (a). Ibid,
Article 3 (c).
21
Trafficking Protocol, Article 3(c).

11
above22. The permeability of the two concepts has become relevant in light of the recent
decision of the international community, (discussed in detail in Part 2 below), to accord
greater protection to the rights of trafficked persons than to those of smuggled migrants.

1.2 Trafficking Fact Patterns

Trafficking is a covert activity and, as such, does not lend itself to standard methods of
measurement and assessment. While extensive research has recently been undertaken on
the nature and scope of trafficking, the variable quality of information presently available
makes it extremely difficult to determine the real dimensions of the phenomenon. Most of
what is available is anecdotal and in the form of non-statistical data and indirect
indicators derived from single examples and small-scale surveys. There is very little trend
evidence. Where statistics on trafficking cases do exist, their value has been undermined
by the lack of an agreed definition of trafficking and the absence of uniform data
collection procedures.

Added to this uncertainty is the tendency of many involved in the trafficking debate to
unquestioningly accept and promulgate unverified data23. The number of women and girls
trafficked each year in circumstances falling within the definition adopted by this study is
routinely and casually estimated to be in the millions24. Such figures have never been
objectively verified and deserve to be treated with caution. Nevertheless, and
methodological uncertainties aside, the existence of a serious problem is beyond dispute.
Trafficking fact patterns vary enormously. However, certain common or typical elements
are detectable within the confines set out above. The definition contained in the recently

22
See further John McFarlane, Transnational Crime and Illegal Immigration in the Asia-Pacific Region
(Strategic and Defence Studies Centre, Canberra, Australia, 1999), citing examples of Chinese migrants
smuggled to Australia and ending up in situations of debt bondage, extortion and servitude. See also the
references in Andreas Schloenhardt, Organized Crime and the Business of Migrant Trafficking: An
Economic Analysis, 32 CRIME, LAW AND SOCIAL CHANGE, 203-233 (1999), [hereafter: Schloenhardt].
23
An illustrative example is provided by various estimates of the total number of persons trafficked.
According to the UN Special Rapporteur on Violence Against Women, the UN has claimed that four
million women are trafficked each year, (Report of the Special Rapporteur on Violence against women, its
causes and consequences, UN Doc E/CN.4/2000/68 at para. 72). According to the Global Survival
Network, “The United Nations estimates that four million people are trafficked throughout the world each
year, resulting in annual illicit profits to criminal syndicates of up to seven billion dollars”, Gillian
Caldwell, Steve Galster, Jyothi Kanics, Nadia Steinzor, Capitalising on Transition Economies: The Role of
the Russian Mafia in Trafficking Women for Forced Prostitution, 3(4) TRANSNATIONAL ORGANIZED CRIME
(1997) 42 at 42. Neither report provides a citation and there is no other information available on how this
figure was reached or the definition of trafficking on which it is based. The US Central Intelligence Agency
has estimated that 45,000 to 50,000 women and children are trafficked annually to the US (Amy O’Neill
Richard, INTERNATIONAL TRAFFICKING IN WOMEN TO THE UNITED STATES: A CONTEMPORARY
MANIFESTATION OF SLAVERY AND ORGANIZED CRIME, Center for the Study of Intelligence, November,
1999 at iii, (hereafter: CIA report). A United Kingdom Home Office report uses “various data” to estimate
the number of women trafficked into the UK at between 142 and 1420, Linda Kelly and Liz Regan,
STOPPING TRAFFIC: EXPLORING THE EXTENT OF, AND RESPONSE TO, TRAFFICKING IN WOMEN FOR SEXUAL
EXPLOITATION IN THE UK, UK Home Office, Police Research Series, Paper 125 (2000).
24
Id.

12
adopted Palermo Protocol and set out above, generally reflects current understanding of
trafficking practices. The key points may be summarized as follows:

• Trafficking takes place for a variety of end purposes including domestic service,
forced marriage and sweatshop labor. Forced prostitution and forced labor are the
most visible end-result of trafficking and many would argue that they are the most
common.
• While reports of trafficking in men are increasing, it appears that women and children
are currently the primary trafficking targets.
• Trafficking occurs within as well as between countries.
• Traffickers use a variety of recruitment methods. Outright abduction is only very
occasionally reported. Child trafficking generally involves payment to a parent or
guardian in order to achieve cooperation and this is often accompanied by a measure
of deception regarding the nature of the child’s future employment or position.
• Most traffickers use fraud or deception, rather than outright force, to secure the initial
cooperation of the trafficked person. A typical situation involves a girl or young
woman being deceived about the cost (and repayment conditions) of the migration
services being offered her, the kind of work she will be doing abroad and/or the
conditions under which she is expected to work.
• By definition, a trafficked person ends up in a situation from which she or he cannot
escape. Traffickers use a variety of methods to prevent escape including threats and
use of force, intimidation, detention and withholding of personal documents.
• Most but not all trafficked persons enter and/or remain in the destination country
illegally. Illegal entry increases a trafficked person’s reliance on traffickers and serves
as an effective deterrent to seeking outside help.
• Many trafficked persons, men as well as women, begin their journey as smuggled
migrants – having contracted an individual or group to assist their illegal movement
in return for financial benefit. As noted above, in a classic migrant smuggling
situation, the relationship between migrant and smuggler is a voluntary, short-term
one – coming to an end upon the migrant’s arrival in the destination country.
However, some smuggled migrants are compelled to continue this relationship in
order to pay off vast transport debts. It is at this late stage that the features of
trafficking (debt bondage, extortion, use of force, forced labor, forced criminality,
forced prostitution) will become apparent.

Current information seems to confirm that trafficking affects all regions and most
countries of the world one way or another. It is therefore not surprising that complex
networks of flows have developed between countries and between continents25. While
favored routes are constantly changing (in response to shifts in supply and demand as
well as law enforcement pressures), one constant factor is the social and economic
distinction between countries of origin and countries of destination. Trafficking, like all
other forms of irregular migration, involves movement from poorer countries to relatively
wealthier ones. There are few identified exceptions to this trend.
25
See John Salt and Susanne Schmid, Trafficking in Migrants, A Preliminary Literature Review, (Paper
presented at International Organization for Migration Workshop on Trafficking, Warsaw, June 8-9, 1998).

13
Trafficking routes to and through Europe have been subject to detailed examination26.
The major European countries of origin identified to date include: Albania, Belarus,
Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Russia, Romania, Slovakia,
Ukraine and the Former Yugoslavia. Within Europe, trafficked persons have been found
in large numbers in Austria, Belgium, Greece, Germany, Hungary, Italy, the Netherlands,
Poland, Spain, Switzerland, Turkey and the United Kingdom. It is widely agreed that the
economic and political dislocation which followed the disintegration of the Soviet Union
led to a massive increase in the absolute number of individuals trafficked from Central
and Eastern Europe to countries of Western Europe, North America, the Middle East
(particularly Israel) and (lately) Asia. Recent experiences in Europe have also served to
confirm that trafficking flourishes during and after serious internal conflict. The Former
Yugoslavia is now an important trafficking destination as well as a major transit point
between Eastern and Western Europe27. There is anecdotal evidence of trafficking during
the Kosovo conflict from the refugee camps of Northern Albania28 and more reliable
information that trafficking to and from both Kosovo and Bosnia is on the rise in
response to a perceived demand for prostitution on the part of wealthy foreign workers
including UN peace-keepers29.

Trafficking patterns in the Americas are less well documented except in the case of
Canada and the US which have both been acknowledged as principle destination
countries for trafficked persons from South-East Asia, Latin America and Central and
Eastern Europe30. Trafficking for sexual exploitation has also been identified in
Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, Jamaica, Mexico and
Uruguay and a comprehensive study of this phenomenon in these countries is currently

26
For a recent and comprehensive overview of the current situation in Southeastern Europe, see: UNICEF,
OHCHR, OSCE/ODIHR, TRAFFICKING IN HUMAN BEINGS IN SOUTHEASTERN EUROPE: CURRENT
SITUATION AND RESPONSES TO TRAFFICKING IN ALBANIA, BOSNIA AND HERZEGOVINA, BULGARIA,
CROATIA, FORMER REPUBLIC OF YUGOSLAVIA, FORMER YUGOSLAV REPUBLIC OF MACEDONIA, MOLDOVA,
ROMANIA, 2002. The IOM has produced some of the most detailed reports on trafficking from, through
and to Europe. See, for example, IOM, TRAFFICKING AND PROSTITUTION: THE GROWING EXPLOITATION OF
MIGRANT WOMEN FROM CENTRAL AND EASTERN EUROPE, (1995); IOM, TRAFFICKING IN WOMEN TO ITALY
FOR SEXUAL EXPLOITATION (1996); IOM, TRAFFICKING IN WOMEN TO AUSTRIA FOR SEXUAL
EXPLOITATION (1996); IOM, MIGRANT TRAFFICKING IN EUROPE: A REVIEW OF MIGRANT TRAFFICKING AND
HUMAN SMUGGLING IN EUROPE WITH CASE STUDIES FROM HUNGARY, POLAND AND UKRAINE (2000); IOM,
TRAFFICKING FOR SEXUAL EXPLOITATION: THE CASE OF THE RUSSIAN FEDERATION, (2002).
27
See, for example, Ludwig Bolzman Institute of Human Rights, Combat of Trafficking in Women for the
Purpose of Prostitution, Bosnia and Herzegovina Country Report, Vienna, 2001.
28
IOM Traffickers make money through humanitarian crises, Quarterly Bulletin on Trafficking, 7/99
(1999).
29
Internal UN Sources. See also Peter Finn, In Kosovo, East Europeans fall Victim to Sex-Slave Trade,
International Herald Tribune, April 25, 2000 at p.5.
30
CIA report, supra note 23 at iii.

14
underway31. In January, 1999, the European Parliament adopted a resolution on the
trafficking (large-scale illegal adoption including occasional kidnapping) of babies from
Guatemala32.

Until very recently, there was almost no information available on trafficking routes
through and from Africa. Even today, the depth and quality of available information is
relatively poor although this situation is improving33. The most likely explanation for the
paucity of data is that trafficking, particularly within Africa, is not given as high priority
as elsewhere. A cursory survey of recent data and documentation would seem to indicate
that non-African states and the organizations they sponsor are only interested in
trafficking activity in Africa to the extent that its impacts are felt outside the region. For
their part, African governments appear to be less concerned with irregular, non-political
border movements than their counterparts in Europe, Asia or the Americas. Partly as a
result of this disinterest and partly because of competing resource priorities,
administrative structures to protect, detect and control migration flows are often weak or
under-resourced. Official data on trafficking within Africa is, accordingly, almost non-
existent and the non-governmental sector has with a few exceptions, been unable to fill
the gap. For the reasons set out above, the situation is a little better in relation to
trafficking flows out of Africa. There is, for example, detailed information available on
the movement of Nigerian women and girls into the European sex industry34.

31
STUDY OF THE TRAFFICKING OF WOMEN AND CHILDREN FOR SEXUAL EXPLOITATION IN THE AMERICAS,
(Developed in partnership by the International Human Rights Law Institute (IHRLI) of DePaul University
(Chicago, Illinois), the Inter-American Commission of Women and the Inter-American Children’s Institute
of the Organization of American States) (2000). For brief information on the trafficking situation and
responses in individual countries of the Americas (excluding the US), see US Trafficking Report
32
European Parliament resolution, 13 January, 1999. See also, Report of the Special Rapporteur
on Sale of Children, Child prostitution and Child Pornography, Mission to Guatemala, UN Doc.
E/CN.4/2000/73/Add.2.
33
For a useful recent overview of trafficking in Africa within the context of broader migration
trends on the continent, see Aderanti Adepoju, Issues an recent rends in international migration
in Sub-Saharan Africa, 165, INTERNATIONAL S OCIAL SCIENCE J OURNAL (2000) 383 at 387-388.
For brief information on the trafficking situation and responses in individual countries of Africa,
see US Trafficking Report, supra note 13.
34
See, for example, the IOM reports cited at note 26, above.

15
Trafficking within and from Asia has been extensively documented35 and this region is
fast becoming the best resource for sophisticated information on trafficking fact patterns
and trends. The principle countries of origin have been identified as including
Afghanistan, Bangladesh, Burma, Cambodia, China, India, Indonesia, Nepal, Pakistan,
the Philippines, Thailand and Vietnam. The principle countries of destination in this part
of the world are said to be Australia, China (including Hong Kong), India, Malaysia,
Pakistan, Singapore, Taiwan and Thailand. In many countries of Asia trafficking is also
an internal phenomenon involving movement between rural areas and cities. This pattern
is particularly evident in China36 and has also been identified in Sri Lanka. Some
countries are simultaneously points of departure, transit and destination for trafficked
persons. Thailand is a case in point. Cambodian, Vietnamese and Burmese women and
girls are regularly trafficked into Thailand to work in the sex industry and through
Thailand on their way to destinations in Europe and the Middle East. Large numbers of
Thai women and girls are in turn trafficked to Japan, Australia and Western Europe.

1.3 Links, Causes and Consequences

The complexity of the trafficking phenomenon and the enormous variation in trafficking
fact patterns makes the precise identification of causes a hazardous undertaking. At the
same time, it is important not to shy away from this task. An understanding of the factors
that cause, encourage or facilitate trafficking is a pre-requisite for the development of
realistic and effective responses. The following analysis seeks to provide some insight
into causes by examining the trafficking cycle as well as key motivations of the principle
actors.

1.1.1. The Emigration Push

Trafficking lies at one extreme end of the migration continuum. Individuals who find
themselves trafficked have almost always made a conscious decision to enter the
migration process. (The situation is, of course, more complicated in respect of children).
The decision to migrate is a highly particularized one with perhaps the only common
factor being a need or desire to improve the quality of one’s personal and/or family life.
This can be broken down further into survival migration (escape from economic, political
35
The enormous quantity of information available on trafficking and through Asia makes any
selection highly subjective. However, the following studies and reports are recommended as
providing well documented and carefully analyzed perspectives on the trafficking phenomenon in
this part of the world: Human Rights Watch/ Asia, Rape for profit, Trafficking of Nepali Girls and
Women to India’s Brothels, (1995); Annuska Derks, TRAFFICKING OF C AMBODIAN WOMEN AND
C HILDREN TO THAILAND , IOM (1997); Pasuk Phongpaichit, Trafficking in People in Thailand,
3(4) TRANSNATIONAL ORGANIZED C RIME (1997) at 74; INTERNATIONAL ORGANIZATION FOR
MIGRATION, PATHS OF EXPLOITATION : S TUDIES ON THE TRAFFICKING OF WOMEN AND C HILDREN
BETWEEN C AMBODIA , T HAILAND AND V IETNAM (1999); Human Rights Watch, O WED J USTICE:
THAI WOMEN TRAFFICKED INTO DEBT B ONDAGE IN J APAN, (2000).;IOM, COMBATTING
TRAFFICKING IN SOUTH EAST ASIA: A REVIEW OF POLICY AND PROGRAMME
RESPONSES (2000); UNICEF: PROTECTING CHILDREN FROM SEXUAL EXPLOITATION
IN EAST ASIA AND THE PACIFIC (2002)
36
See, Xin Ren, Violence Against Women Under China’s Economic Modernisation: Resurgence of
Women Trafficking in China, available from www.aic.gov.au/publications/proceedings/27/ren.pdf

16
or social distress) and opportunity-seeking migration (the search for better
opportunities)37. There are different circumstances and motivations which characterize
these two sets of movements. Survival migrants are, by definition, acting under greater
compulsion than opportunity-seeking migrants38. Consequently they are more likely to
attempt a circumvention of legal restrictions and to accept the risks that accompany being
smuggled or trafficked. They are also more vulnerable to the deceptive and coercive
practices which are the hallmarks of trafficking.

The gender dimensions of this analysis deserve consideration. There is solid evidence to
suggest that the majority of survival migrants are women39. It would appear that men are
much more likely to be smuggled than trafficked and their socio-economic status tends to
be higher than that of trafficked women. The general feminization of poverty (itself
caused by the failure of existing structures to provide equal and just opportunities for
women) and the consequential feminization of migration is one likely explanation for the
over-representation of women amongst survival migrants. However the wider issue of
human rights violations and the role that they play in motivating female survivor
migration should also be considered. Studies examining the motivations of trafficked
persons have confirmed that many women will accept dangerous migration arrangements
in order to escape the consequences of entrenched gender discrimination including lack
of access to basic resources, unemployment and violence40. Female survivor migration in
the form of refugee movements is also closely linked to the often gender-specific human
rights violations which characterize internal conflicts and other refugee-generating
situations41.

While it is difficult to draw firm conclusions from case studies, an analysis of the human
rights record of the major source countries appears to confirm a link between the position
of women and their susceptibility to trafficking and related exploitation. According to the
UN Special Rapporteur on Violence Against Women, governments actually create
situations in which trafficking flourishes by failing to protect women’s civil, political,

37
This distinction between survival migration and opportunity migration is identified by Bimal
Ghosh in HUDDLED MASSES AND UNCERTAIN S HORES: INSIGHTS INTO IRREGULAR MIGRATION,
(1998) at 35. Note however that Ghosh links survival migration solely to economic distress and
does not discuss political or social factors behind survival migration. [Hereafter: Gosh].
38
Id.
39
It is widely accepted for example, that women comprise the majority of the world’s refugees.
See UN High Commissioner for Refugees, P OPULATION R EPORT, WOMEN, C HILDREN AND O LDER
REFUGEES: THE S EX AND AGE DISTRIBUTION OF R EFUGEE P OPULATIONS WITH A S PECIAL
EMPHASIS ON UNHCR P OLICY (2001) which estimates that 55% of the world’s refugees are
women. See also UN High Commissioner for Refugees, POLICY ON WOMEN citing that women
represent over 80% of the beneficiaries of UNHCR’s assistance programs, available from
www.unhcr.ch
40
See generally, Report of the Special Rapporteur on Violence against women, its causes and
consequences, TRAFFICKING IN WOMEN, WOMEN’S MIGRATION AND VIOLENCE A GAINST WOMEN
UN Doc E/CN.4/2000/68, para 58
41
Supra note 39.

17
economic and social rights42. Contemporary examples are not difficult to identify. The
rise in trafficking of women from Central and Eastern Europe was, in the first instance,
attributed to the breakdown of borders and increasing freedom of movement. However it
also coincided with a marked deterioration in women’s access to resources and the labor
market43. Observers of the human trade which has developed between Nepal and India
argue that it is sustained, at least on the Nepalese side, by a particularly virulent form of
female poverty which has its roots in a legal and social system which refuses to grant
equal rights to women in critical areas such as property ownership, inheritance and
nationality44. The importance of the Former Yugoslavia as a primary source, transit and
destination region for trafficked persons owes its origins, at least in part, to an internal
armed conflict characterized by vicious and often gender-based attacks on human rights45.
Widespread social and legal discrimination against women, coupled with an
undemocratic authoritarian government has been identified as a critical factor in the large
number of women and girls being trafficked out of Myanmar (Burma)46.

Once an individual decides (or is forced) to enter the irregular migration process, gender
continues to be determinative. As noted above, existing data seems to confirm that the
majority of smuggled migrants are men and the majority of trafficked persons are
women. While no explanation has yet been offered for this anomaly, it is likely that
women’s relative inability to pay up-front for their transportation is one factor
predisposing them to subsequent exploitative arrangements such as debt bondage.
Women are also more vulnerable to certain forms of exploitation including sexual
exploitation. Finally, it is the informal labor and entertainment sectors – both
predominantly female – that are the principle target markets for traffickers.

1.1.2. The Immigration Pull

Trafficking services a market in which there are both buyers and sellers. The growth in
trafficking reflects not just an increase in “push” factors but also the strong pull of unmet
labor demands – particularly in the informal, unregulated sector. The demand side of

42
Report of the Special Rapporteur on Violence against women, its causes and consequences, UN
Doc E/CN.4/2000/68 at para. 54.
43
See generally, citations in note 26, above.
44
See also, Population Council, Trafficking and Human Rights in Nepal: Community perceptions
and Policy and program Responses, Joint research summary of Horizons and the Asia
Foundation, Washington DC, 2001. See also, Report of the Special rapporteur on violence against
women, its causes and consequences, REPORT OF A MISSION TO B ANGLADESH , INDIA AND NEPAL ON
THE I SSUE OF T RAFFICKING OF W OMEN AND G IRLS , UN D OC . E/CN.4/2001/73/A DD .2, at para 80

45
For an overview and legal analysis of the gender-based crimes including rape and sexual
assault committed during the Yugoslavia conflict, see M. Cherif Bassiouni and Peter Manikas,
THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE F ORMER YUGOSLAVIA ,
Transnational Publishers, 1996 especially at Chapters 1,8.
46
David E. Feingold, Sex, Drugs and the IMF Some Implications of Structural Re-adsjustment for
the Trade in Heroin, Girls and Women in the Upper Mekong Region, 17 (5) R EFUGE , November
1998, 4 at 6-9.

18
trafficking has not yet been subject to close analysis: a reflection of the widespread,
unjustified and often inherently racist assumption that the “problem” of trafficking is
essentially caused by source countries. However, as Williams notes in his study of the
market dynamics of trafficking, demand is clearly sufficient to sustain the enormous
profits required by organized criminal groups and to encourage the emergence of a new
breed of entrepreneurs whose job it is to match supply with demand47.

Labor shortages in the informal sector of most industrialized economies have traditionally
been addressed through the (often illegal but tolerated) import of foreign workers. It is the
members of this group who have traditionally been channeled to the bottom of the labor-
market hierarchy – undertaking the “dirty, dangerous and difficult”48 jobs which are
rejected by the domestic labor force. The global labor market reproduces traditional
gendered divisions of labor which exist, to a greater or lesser extent, in all countries. The
effect of these divisions is that women have less opportunity than men to engage in
skilled work. They are therefore much more dependent than men for employment in the
very sector where demand for the products of trafficking is strongest. That demand can be
traced, at least in part, to cost differentials. Put simply, trafficked persons fill a market
requirement for cheap labor. If remunerated at all, such individuals are invariably paid at
a much lower rate than local workers and they do not receive the kind of employment
benefits which are now standard in most industrialized economies. The profit potential is
therefore much higher and the services involved can accordingly be provided at a much
cheaper cost than would be the case for local, legal labor. In the case of trafficking into
the sex industry, cost differentials are often reinforced by a demand for the young and the
“exotic”.

Disparities in income and employment levels act as an important pull factor. Rapid
advances in communications technology mean that even the most isolated communities
are becoming aware of alternative lifestyles and opportunities. As Portes notes: “The
fulfillment of normative consumption expectations imported from the advanced countries
become increasingly difficult under conditions of economic scarcity”49. The immigration
pull exerted by the prospect of better opportunities is a strong one – particularly when
coupled with increasingly easy and accessible transportation options. The possibility of
employment is a strong pull factor for survival migrants, whose primary goal is to find a
job – any job50. Wage levels are less important to this group than to opportunity seeking
migrants who will generally require greater inducements (e.g. the prospect of very
lucrative employment coupled with a low risk of detection) to use unlawful migration
channels.

47
Phil Williams, Trafficking in Women and Children: A Market Perspective, 3(4)
TRANSNATIONAL ORGANIZED C RIME , (1997), 145 at 154, [hereinafter, Williams 1/1997].
48
Ghosh, supra note 37 at 53.
49
Alejandro Portes, THE ECONOMIC S OCIOLOGY OF IMMIGRATION (1995) at 21, cited in Margaret
Beare, Illegal Migration: Personal Tragedies, Social Problems or National Security Threats? 3 (4)
TRANSNATIONAL ORGANIZED C RIME , (1997), 11 at 20, [hereinafter, BEARE].
50
Ghosh, supra note 37 at 59.

19
The “pull” power of information should not be underestimated. A study of trafficking
patterns reveals that many trafficked persons make the decision to emigrate on the basis
of false or misleading information. Traffickers and smugglers typically minimize the
risks involved in irregular migration and greatly exaggerate the potential gains51. The
false promises and deceit which characterize modern trafficking practices follow and
build upon such misinformation.

1.1.3. The Impact of Emigration and Immigration Restrictions

Irregular migration is the result of a discordance between the number of individuals who
wish to migrate and the legal opportunities for them to do so52. Restrictions on
opportunities for migration may be found in the country of origin and/or the country of
destination. According to Ghosh, a severely restrictive emigration policy is more likely to
fuel irregular migration than to stop it53. This is highly relevant to the trafficking debate
because a number of the principle countries of origin have responded to the perceived
dangers of female emigration by placing restrictions on female migratory outflows on the
basis of age and/or country of origin. Thailand, for example, prohibits the recruitment of
women except for certain countries of destination. Entertainers must be qualified and
licensed and may not perform in nightclubs54. Similar restrictions are placed on Nepalese
women seeking to lawfully emigrate in search of work55. When such discriminatory
restrictions on movement are enacted without any corresponding effort to alleviate the
compulsion to migrate, they serve only to encourage potential migrants to seek out the
services of smugglers and traffickers.

The increasingly restrictive nature of first-world immigration policies has been well
documented56. While onerous legal restrictions may have some deterrent effect on
opportunity-seeking migrants, they will do little to stem the outflow or alter the direction
of survival migrants whose compulsion to move is often greater than their fear of
apprehension and repatriation. Immigration restrictions do, however, change the way in
which survival migration takes place. In the absence of any legal opportunity to effect
their movement, survival migrants are usually left with little choice but to seek out and
accept the services of smugglers and traffickers. Recent research has confirmed, for
example, that an increasing proportion of the world’s asylum seekers are smuggled (and

51
Ghosh, supra note 37 at 60.
52
Ghosh, supra note 37 at 34.
53
Ghosh, supra note 37 at 62.
54
Ghosh supra note 37, citing Abella.
55
Report of the Special Rapporteur on Violence against women, its causes and consequences, UN
Doc. E/CN.4/2001/73/Add.2 at para 26
56
See, for example, John Morrison with Beth Crossland, THE TRAFFICKING AND SMUGGLING OF
REFUGEES: THE END GAME IN EUROPEAN ASYLUM POLICY (UN High Commissioner for Refugees,
Working Paper No. 39 , April, 2001), at 58. [hereafter: Morrison].

20
occasionally trafficked) to their country of destination57. Ironically, tighter law
enforcement controls on smuggling and trafficking, rather than alleviating the problem,
have helped to create a monopoly for the best and most sophisticated operators.58

1.1.4. The Organized Crime and Globalization Connections

The term “organized crime” does not refer to a type of crime but to a phenomenon or
methodology of criminality59. The traditional understanding of organized crime is
encapsulated in the following definition:

[C]riminal acts committed by self-perpetuating, structured and disciplined

associations of individuals or groups combined together in a hierarchical or
coordinated manner. Their activities are generally conspiratorial and tend to
insulate their leadership from direct involvement. Their primary goal is economic
gain from illegal activities60.

The UN Convention against Transnational Organized Crime covers offences which are
transnational in nature and involving an organized criminal group61. An organized
criminal group is defined as

“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.62

This broader definition is clearly intended to cover the full range of criminal affiliations
involved in modern manifestations of transnational organized crime such as trafficking –
from large, corporate-like structures to loose confederations of criminal entrepreneurs to
even more informal gangs and crime groups.

Organized criminal groups are opportunity seeking – they operate where demand and
opportunity exist and where the risks are relatively low63. It is therefore not surprising that

57
Ibid.
58
Beare, supra note 49 at 22.
59
International Centre for Migration Policy Development, THE R ELATIONSHIP B ETWEEN
ORGANIZED CRIME AND TRAFFICKING IN ALIENS, Study prepared by the Secretariat of the
Budapest Group, June 1999 at p. 18. (hereafter: ICMPD study).
60
CIA report, supra note 23 at vii.
61
United Nations Convention Against Transnational Organized Crime, 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, UN Doc. A/55/383 (2000), Annex 1, Article 3(2). [hereafter:
Organized Crime Convention].
62
Ibid. (Article 2(a)).
63
ICMPD study, supra note 59 at 10.

21
transnational organized criminal groups have become an important mediator of
immigration in most regions of the world: “partly replacing or at least overlaying the
classic push and pull factors of migration-inducing international ties between origin and
destination country or migration-maintaining kinship and family networks”64. While the
actual extent of organized criminal involvement remains to be determined65 − particularly
in Asia where trafficking and smuggling is still very much a “cottage industry”, it is
apparent that migrant smuggling and trafficking now constitute a major source of revenue
for organized crime66. Both practices are “low-risk” in the sense that apprehension is
unlikely, prosecutions rare and punishment relatively light67. Restrictions on legal
migration in countries of origin and destination have served to ensure a regular and
increasing demand for such services and therefore their continuing profitability. In most
parts of the world, trafficking and migrant smuggling are closely intertwined with other
illegal activities including drug smuggling, money laundering, document forgery and
bribery68. Public sector corruption is an essential component of the process: “provid[ing]
the lubricant which allows criminal organizations to operate with maximum effectiveness
and minimum interference”69.

Trafficking in persons is a highly lucrative business for organized criminal groups as

profits can be earned from the migration process as well as from the subsequent
exploitation of what is, essentially, a renewable commodity70. As a result of organized
criminal involvement, trafficking and migrant smuggling are becoming highly
specialized, more efficient and flexible, better structured, increasingly coercive and less
amenable to the traditional law enforcement approach which continues to be defined and
limited by national borders. The globalization of markets has had a similarly
transformative impact on trafficking and migrant smuggling. Transnational organized
criminal groups have benefited from the increased mobility and declining international
restrictions on movements of goods, money and services which characterize the new
global order. Schloenhardt points to the growing evidence that “organized crime
systematically creates international structures and violates the legislation of more than
one country to benefit from the changes in world markets and their regulation”71. The

64
International Migration Forum: A Tentative Summary, cited in UN Doc. E/CN.15/1999/CRP.2
(1999) at p.5.
65
CIA report, supra note 23 at vii.
66
See citations in Schloenhardt, supra note 22 at notes 75 to 77.
67
See Williams, 1/1997, supra note 47 at 156.
68
CIA report, supra note 23 at 13.
69
Phil Williams, Human Commodity Trafficking: An Overview, 3 (4) T RANSNATIONAL ORGANIZED
CRIME, (1997), 1 at 4.
70
ICMPD Study, supra note 59 at 19.
71
Schloenhardt, supra note 22 at 8.

22
development of new international law to tackle organized crime and its involvement in
trafficking and smuggling is one important step towards meeting this growing challenge.

PART TWO: INTERNATIONAL LAW AND TRAFFICKING

The issue of trafficking does not exist within a neat international legal framework and
very little work has been done on identifying the relevant norms with precision. The
present section attempts to negotiate a path through a myriad of norms and instruments
with a view to determining the extent to which international law – particularly
international human rights law, addresses itself to the modern trafficking phenomenon. It
begins with an examination of the issue of State responsibility as this doctrine applies to
trafficking. This is followed by an overview of various human rights standards invoked in
the trafficking context including: the rights of non-nationals; the prohibition on slavery
and servitude; the prohibition on trafficking in women, forced prostitution and forced
marriage; forced and compulsory labor; debt bondage; protection of migrants and migrant
workers; violence against women; the rights of the child; international refugee law;
international humanitarian law and international criminal law. Recent legislative and
policy initiatives including the UN Trafficking Protocol, the SAARC Convention and the
Principles and Guidelines on Human Rights and Human Trafficking released by the UN
High Commissioner for Human Rights in July 2002 are examined in the second part of
this section.

2.1 The Issue of State Responsibility for Trafficking

It is widely accepted that human rights violations are an important root cause of
trafficking and that the trafficking process itself constitutes a serious violation of human
rights72. However, in most parts of the world, traffickers are private individuals or
criminal groups, not state officials or instrumentalities. To what extent can States be held
responsible under international law for the human rights violations associated with
trafficking? This is not an abstract issue but one with highly practical implications. The
State remains the primary actor in international law. It is through the State that trafficked
persons may seek protection and it is against the State that those same individuals may
claim reparations or redress for violations.

In addressing the issue of State responsibility for trafficking, it is relevant to examine the
nature of a State’s obligations vis a vis human rights. States are under an international
72
See, for example, Vienna Declaration and Program of Action, World Conference on Human
Rights, UN Doc. A/CONF/157/23 (1993) pt. 1, para 18 (“Gender-based violence and all forms of
exploitation including those resulting from cultural prejudice and international trafficking, are
incompatible with the dignity and worth of the human person and must be eliminated”, and pt. II,
para. 38. [Hereafter: Vienna Declaration and Program of Action] See also, Fourth World
Conference on Women: Action for Equality, Development and Peace, Beijing Declaration,
Platform for Action, reprinted in Report of the Fourth World Conference on Women (1995), UN
Doc. A/CONF.177/20 (1995) at paras 122, 130. The most recent General Assembly resolution on
this subject asserts that “sexual violence and trafficking in women and girls for purposes of
economic exploitation, sexual exploitation through prostitution and other forms of sexual
exploitation and contemporary forms of slavery are serious violations of human rights”.
A/RES/55/67.

23
legal obligation to respect, protect and fulfill human rights73. The obligation to respect
rights requires the State to refrain from any act or omission that violates rights. The
obligation to protect rights requires the State to take active measures aimed at preventing
violations whether committed by agents of the State or by non-State actors. Finally, the
obligation to fulfill rights requires the State to implement affirmative measures to enable
all persons to realize their rights.

The fact that much trafficking activity is undertaken by non-State actors does not prevent
States from being held directly and indirectly responsible under international law for such
actions. Where human rights violations (such as those implicated in trafficking) occur
with official support or acquiescence then the State is held to be complicit and therefore
directly responsible for the violation itself74. The direct involvement of law enforcement
or border officials in trafficking rackets would be an example of conduct leading to direct
State responsibility - as would public sector corruption which sustains and encourages
trafficking. On another level, a State may also be directly responsible for human rights
violations which can be proved to lead to trafficking. Discriminatory property laws which
impoverish women, or discriminatory emigration laws which drive women and girls to
use the services of traffickers and smugglers may, for example, be held to breach a
State’s obligation to take all appropriate measures to suppress trafficking in women. In
situations where the government has allowed the violative act to take place without taking
effective measures to prevent it or to punish those responsible, then the State itself is
indirectly responsible for the human rights violations flowing from that private act. The
question, in this latter case, is whether the State exercised due diligence in preventing and
responding to the violative act75. Progressive application of the due diligence standard

73
John Cerone, State Responsibility for the Acts of Non-State Actors: The Trafficking of Women
for the Purpose of Sex Industry Work, (unpublished paper on file with the author) at 1. Cerone
notes that this categorization is increasingly being adopted by scholars and UN bodies as a
framework for analyzing States’ human rights obligations. [hereafter: Cerone]
74
The jurisprudence on this point is relatively recent and somewhat scant. The usual citation for
the principle is the Velasquez-Rodriguez case, Judgement of July 29, (1988) Inter-Am. Ct.H.R.
(Ser.C) No. 4, para. 182: “What is decisive is whether a violation of the rights recognized by the
[Inter-American Convention on Human Rights] has occurred with the support or acquiescence of
the government, or whether the State has allowed the act to take place without taking measures to
prevent it or to punish those responsible”. The U.S. Restatement, usually regarded as the
“official” US interpretation of international law, is more cautious: “a state violates international
law if, as a matter of state policy, it practices, encourages or condones human rights violations,
including genocide and others capable of being committed by non-state actors”. American Law
Institute, R ESTATEMENT (THIRD) OF THE F OREIGN R ELATIONS LAW OF THE UNITED S TATES, (1987),
para. 702ed).
75
“An illegal act which violates human rights and which is initially not directly imputable to a
state (for example, because it is the act of a private person or because the person responsible has
not been identified) can lead to international responsibility of the State, not because of the act
itself but because of the lack of due diligence to prevent the violation or to respond to it”.
Velasquez-.Rodriguez case, supra note 74 at para. 172. The court went on to say: “This duty to
prevent includes all those means of a legal, political, administrative and cultural nature that
promote the protection of human rights and ensure that any violations are considered and treated
as illegal acts which, as such, may lead to punishment of those responsible and the obligation to
indemnify the victim for damages”. Ibid at para. 175. Further on the due diligence test and its
status in international law and practice in the present context, see the Report of the Special
Rapporteur on Violence Against Women, its Causes and Consequences, UN Doc. E/CN.4/2000/68

24
may yield results which are beneficial to trafficked persons by requiring the State to
undertake a range of measures including (but not limited to): legislative prohibition of
trafficking and related practices, effective enforcement of this prohibition, provision of
assistance and legal remedies for victims and general preventive actions aimed at
addressing the underlying causes of trafficking76.

2.2 Human Rights Law

2.2.1 The rights of non-nationals

The position of non-nationals under contemporary international law is of particular

relevance to an evaluation of the rights of trafficked persons. While the precise
boundaries of state responsibility in this area remain to be determined77, traditional
international law recognized that certain duties (either “equal treatment” or an
“international minimum standard”) were owed by a host state to aliens or non-nationals
within its territory78. A State would be held legally responsible for injury to aliens
resulting from acts which were contrary to international law79. However, as the individual
lacked formal legal status, it was to the State of origin that such rights accrued80 and the
decision of whether to extend diplomatic protection was one for that State to make.

While not totally supplanting the traditional law of State responsibility for injury to
aliens81, the development of international human rights law has resulted in greater
protection for this category of persons with the added advantage of such rights being
vested in the individual and not the State. Under the doctrine of Erga Omnes, the State is

at paras. 52-53.
76
For a discussion of steps to be taken by States in accordance with the due diligence principle,
see Dinah Shelton, Private Violations, Public Wrongs and the Responsibilities of States, 13
F ORDHAM INTERNATIONAL LAW J OURNAL, 23 (1989), and Rebecca Cook, State Responsibility for
Violations of Women’s Human Rights, 7 HARVARD H UMAN R IGHTS J OURNAL, 125 (1994).
77
On the general subject of state responsibility for injury to aliens with particular reference to
human rights, see M.S, McDougal, H.D. Lasswell and L. Chen, Protection of Aliens from
Discrimination and World Public Order, 70 AMERICAN J OURNAL OF INTERNATIONAL LAW 432
(1976).
78
Ryszard Cholewinski, MIGRANT WORKERS IN INTERNATIONAL HUMAN R IGHTS LAW, 40-47
(hereafter “Cholewinski”).
79
The usual citation for this principle is Mavrommatis Palestine Concessions (Greece v. Great
Britain), 1924 P.C.I.J. (series A.) No. 2, 6 12 (August 30).
80
Cholewinski, supra note 78 at 45.
81
D.J. Harris, CASES AND M ATERIALS ON INTERNATIONAL LAW (1991), 499-500, “That the law of
State responsibility for aliens is not made redundant by the emergence of international human
rights law follows from the uncertainty as to the rules on the enforcement of customary human
rights law and the less than perfect remedies and universal acceptance of human rights treaties.
For the time being at least, the possibility of diplomatic protection by one’s national State is a
valuable alternative and supplement to such guarantees and procedures under international human
rights law as may exist”, cited in Cholewinski, supra note 78 at 47.

25
held responsible for violations of basic human rights vis a vis other States irrespective of
whether the State of nationality adopts the claim and even where the victim is a national
of the violating State82. In relation to non-nationals however, the extent of protection is
both uneven and uncertain. Despite universalist claims, the major international human
rights treaties contain numerous provisions either specifically excluding non-nationals or
evidently inapplicable to them83. Core rights, at least, such as the prohibition on slavery,
forced labor and debt bondage, do appear to be protected. The rights set forth in the
Universal Declaration of Human Rights, for example, apply to “everyone” – without
distinction of any kind84. Application of the International Covenant on Civil and Political
Rights (ICCPR), is specifically extended to “all individuals” without distinction of any
kind85. The Human Rights Committee (charged with overseeing the implementation of
the ICCPR) has confirmed that “[i]n general, the rights set forth in the Covenant apply to
everyone, irrespective of … his or her nationality … ”86.

In relation to the International Covenant on Economic, Social and Cultural Rights, the
position is slightly more equivocal. The non-discrimination clause in Article 2(2) of this
instrument is much narrower than in the ICCPR87 and there is no general norm of non-
discrimination against aliens as is found in the ICCPR. While several of the Covenant’s
major provisions have been interpreted as applying equally to non-nationals88, developing
countries are explicitly permitted to determine the extent to which they will guarantee the
82
This doctrine arose from the Judgement of the International Court of Justice in the Barcelona Traction
case (Second Phase, 5 February, 1950). For an examination of the doctrine and its implications for
international human rights law, see Maurizio Ragazzi, T HE C ONCEPT OF INTERNATIONAL O BLIGATIONS E RGA
O MNES , Clarendon Press, Oxford (1997).
83
Cholewinski, supra note78 at 47. Further, detailed information on the applicability of international
human rights law can be found in The rights of non-citizens, preliminary study submitted by Mr. David
Weissbrodt in accordance with Sub-Commission decision 2000/103, UN Doc. E/CN.4/Sub.2/2001/20.
(hereafter: Weissbrodt)
84
Universal Declaration of Human Rights, Article 2(1).
85
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant without distinction of
any kind such as race, color, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status”, ICCPR, Article 2.1. (emphasis added ). Nowak notes that while nationality
is not included amongst the prohibited grounds of discrimination, this listing is clearly non exhaustive as
illustrated by the words “”such as” and “or other status”. Manfred Nowak, , U.N. C OVENANT ON C IVIL AND
P OLITICAL R IGHTS : CCPR C OMMENTARY (1993) at 45. (hereafter: Nowak)
86
General Comment 15/27 of the Human Rights Committee on the Position of Aliens Under the Covenant,
22 July 1986, at para. 1 (available from http://www.unhchr.ch). Further on the applicability of various
articles of the Covenant to non-nationals, see Cholewinski, supra note 78 at 51 – 55.
87
“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the
present Covenant will be exercised without discrimination of any kind as to race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status”. International
Covenant on Economic, Social and Cultural Rights, Article 2.2. Commentators are divided on the question
of whether this provision would admit further grounds of discrimination such as nationality. See further,
Cholewinski, supra note 78 at 57-58.
88
See, for example, General Comment No. 13 of the Committee on Economic, Social and Cultural Rights
on the right to education (1999), available from http://www.unhchr.ch.

26
economic rights set forth in the Covenant to non-nationals89. The Convention on the
Elimination of Racial Discrimination (CERD) is even more restrictive, declaring that
“This Convention shall not apply to distinctions, exclusions, restrictions or preferences
made by a State party to this Convention between citizens and non-citizens”90. Whilst this
provision has not operated in practice to exclude aliens from the protection of CERD91, it
does serve to illustrate the reluctance of States to accept the principle of equality of
rights. By contrast, the Convention on the Elimination of Discrimination Against
Women92 contains no such limitation and States Parties would accordingly be required to
apply the prohibition on sex-based discrimination to all women within their territory or
under their jurisdiction. The provisions of the Convention on the Rights of the Child
apply to all children within the jurisdiction of the State party, irrespective of race or
citizenship93.

2.2.2 The international prohibition on slavery and servitude

In its “classic” form, slavery and the slave trade involved the open trading (buying,
selling and transportation) of individuals, in massive numbers, for the purpose of
exploiting their labor for profit. Freedom from slavery was one of the first rights to be
recognized under public international law – prohibitions on the trading in slaves being a
central feature of many multilateral and bilateral conventions from the early nineteenth
century onwards94. The mandate of the League of Nations expressly included suppression
of the slave trade and the prohibition of forced labor. The 1926 Convention on Slavery95,

89
International Covenant on Economic, Social and Cultural Rights, Article 2(3). Further on the
applicability of various articles of the Covenant to non-nationals, see Cholewinski, supra note 78
at 58-61.
90
Convention on the Elimination of all Forms of Racial Discrimination, 660 UNTS 195, Art.
1(2). The Committee of the Elimination of Racial Discrimination, established to oversee
implementation of this Convention, has addressed the issue of non-citizens in its General
Recommendation 11, available from http://www.unhchr.ch. Importantly, the Committee notes, in
this General Recommendation, that the restriction contained in Art. 1(2): “must not be interpreted
to detract, in any way, from the rights and freedoms recognized and enunciated in other
instruments”.
91
Cholewinski, supra note 78 at 62-64.
92
Convention on the Elimination of all Forms of Discrimination Against Women, available from
http://www.unhchr.ch.
93
Convention on the Rights of the Child, Article 2(1), available from http://www.unhchr.ch.
94
For example, the Peace Treaties of Paris (1814 and 1815), the Declaration and Final Act of the
Congress of Vienna (1815) the Declaration of Verone (1817) bilateral treaties between Great
Britain and France (1831, 1833, and 1845) the Treaty of London (1841) the Treaty of Washington
(1862) the General Act of the Berlin Congo Conference (1885) the General Act of the Brussels
Conference (1890) and the Convention of St. Germain-en-Laye (1919). See further, M. Cherif
Bassiouni, Enslavement as an International Crime, 234 INTERNATIONAL LAW AND P OLITICS
(1991), 445 at 459-465, (hereafter: Bassiouni, 1991) and Nina Lassen, Slavery and Slavery-like
Practices: United Nations Standards and Implementation, 57 NORDIC J OURNAL OF
INTERNATIONAL LAW, (1988), 197 at 197-198, (hereafter: Lassen).
95
Convention on Slavery (1926), 60 LNTS 253.

27
which was drafted under League auspices, is now widely recognized as the first modern
international treaty for the protection of human rights96. The Convention defines slavery
as “the status or condition of a person over whom any or all of the powers attaching to the
rights of ownership are exercised”97. States Parties are required to take all necessary steps
to prevent and suppress the slave trade and to work towards the abolition of slavery in all
its forms98.

The Universal Declaration of Human Rights, adopted by the General Assembly of the
UN in 1948, provides that “no-one shall be held in slavery or servitude. Slavery and the
slave-trade shall be prohibited in all their forms”99. In 1949 work began within the UN on
the elaboration of a new legal instrument – one which would address itself to certain
institutions and practices resembling slavery as well as aiming at the abolition of the legal
status of slavery. The result was the Supplementary Convention on the Elaboration of
Slavery, the Slave Trade and Institutions and Practices Similar to Slavery100 of 1956. The
central feature of this Convention is its extended application to the institutions and
practices of debt bondage, serfdom, servile forms of marriage and exploitation of children
which are all held to be similar to slavery. The Convention retains the 1926 definition of
slavery and the slave trade and adds a new concept: a person of “servile status” which is
intended to differentiate a “slave” from a victim of one of the institutions or practices
referred to as “slave-like”. States Parties are required to bring about progressively, and as
soon as possible, the complete abolition of specified slave-like institutions and practices
as well as to ensure their criminalization. The Convention does not provide for any kind
of supervisory mechanism beyond information exchange101.

96
Nowak, supra note 85 at 146. See also H.Lauterpacht, INTERNATIONAL LAW AND HUMAN
RIGHTS (1950) 334-335. The Convention was drafted in response to a recommendation
(subsequently endorsed by the General Assembly) of the temporary Slave Commission – a body
established by the League in 1922 for the purpose of ascertaining the extent of slavery and
making proposals for its eventual eradication.
97
Convention on Slavery, supra note 95, Article 1.
98
Ibid, Article 2. The League established a Standing Advisory Committee to oversee
implementation of the Convention. The Convention itself continued to exist after the demise of
the League by virtue of a protocol elaborated under UN auspices which entered into force in 1957
(Protocol Amending the Slavery Convention, signed at Geneva on 25 September, 1926 (1953).
99
Universal Declaration of Human Rights, Article 4.
100
Supplementary Convention on the Elaboration of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery, 266 UNTS 3.
101
On this issue see further the 1989 Report of the Secretary-General on ways and means of
establishing an effective mechanism for the implementation of the various slavery conventions,
UN Doc. E/CN.4/Sub.2/1989/37 (1989).

28
Along with the major regional human rights treaties102, the ICCPR103 reiterates the
prohibition on slavery and the slave trade as set out in the Universal Declaration. Both the
Universal Declaration and the ICCPR further stipulate that no person shall be held in
servitude104 – a term which, while not defined by either instrument, is generally seen to be
broader than slavery, referring to “all conceivable forms of domination and degradation
of human beings by human beings”105. The provisions of the ICCPR relating to both
slavery and servitude are non-derogable, i.e. they cannot be suspended by a State, even in
times of emergency106.

The principle instruments of international humanitarian law also contain very explicit
prohibitions on slavery and the slave trade during situations of armed conflict107. In the
context of both humanitarian law and human rights law, slavery has been identified as an
international crime, including as a war crime and a crime against humanity108.

In view of its unequivocal, universal character, the prohibition on slavery is now widely
recognized as jus cogens – a fundamental norm of international law109. The prohibition is,

102
Article 4(1) of the European Convention on Human Rights, EUROPE. TS, No. 5; Article 6(1) of
the American Convention on Human Rights, OAS, IACHR, INTER-AM . CHR, B ASIC DOCUMENTS
PERTAINING TO HUMAN R IGHTS IN THE INTER -AMERICAN S YSTEM, OEA (1988) at 25-55; Article 5
of the African Convention on Human and People’s Rights, G.A. Res. 35/197, 35 UN GAOR Supp.
(no. 48) at 208, UN Doc. A/35/48 (1981).
103
International Covenant on Civil and Political Rights, Article 8, available from
http://www.unhchr.ch.
104
Universal Declaration of Human Rights, Article 4, International Covenant on Civil and
Political Rights, Article 8(2).
105
Nowak, supra note 85 at 148. Nowak cites the relevant travaux preparatoires of the ICCPR to
support his argument that this provision covers slavery-like practices involving economic
exploitation such as debt bondage, servile forms of marriage and all forms of trafficking in
women and children. That interpretation can be justified (at least for debt bondage, servile forms
of marriage and trafficking in children) by reference to the 1956 Convention which defines a
person of “servile status” as being a victim of such practices. Servitude has not, however, been
mentioned in any of the conventions dealing with trafficking until the 2000 Trafficking Protocol
which is discussed below at Section 3. On the history of the term “servitude” with reference to
Article 4 of the Universal Declaration, see Lassen, supra note 94 at 210 plus references.
106
ICCPR. Article 4 (2).
107
For a full listing of (and commentary on) the provisions of international humanitarian law
relating to slavery, forced labor and similar practices, see Bassiouni, 1991, supra note 94 at 492-
517.
108
Article 6 (c), Nuremberg Charter, Article 5, Charter of the Tokyo War Crimes Tribunal, cited
in International Commission of Jurists, COMFORT WOMEN – AN UNFINISHED ORDEAL (1994) at
169. See also, update to the final report submitted by Ms. Gay J. McDougall, Special Rapporteur,
Systematic rape, sexual slavery and slavery-like practices during armed conflict,
E/CN.4/Sub.2/2000/21 at paras. 23-67 [hereafter, McDougall, update to final report].
109
The concept of Jus Cogens is encapsulated in the definition of “peremptory norm of general
international law” contained in Article 53 of the 1969 Vienna Convention on the law of Treaties:
“… a norm accepted and recognized by the international community 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”. On the prohibition of slavery as a norm of

29
however, carefully circumscribed. As noted above, States have been meticulous in
separating the traditional concept of slavery (involving the permanent destruction of an
individual’s juridical personality110) from the range of practices identified as analogous or
otherwise similar to slavery. The prohibition on “classical” slavery is absolute. In relation
to practices falling within the second category, the international legal position is more
equivocal. In addition, it is not at all clear whether the legal prohibition on an apparently
exhaustive list of practices “similar” or “analogous” to slavery can be extended to cover
additional, unspecified situations such as trafficking. It could certainly be argued that
modern trafficking practices (particularly involving children or debt bondage) are similar
to slavery within the meaning of the 1956 Convention. It is much more difficult to sustain
a claim that trafficking is included in the jus cogens norm prohibiting slavery and the
slave trade. However, recent developments in international humanitarian law and
international criminal law have provided a welcome entry point for arguments that
contemporary situations of trafficking could be legally equivalent to slavery. One of the
most significant of these developments is a decision of the International Criminal
Tribunal for the Former Yugoslavia (ICTY) which related to a charge of enslavement as a
crime against humanity111. In this instance, the Trial Chamber found the count of
enslavement proved and, in its analysis, identified a number of elements to be of
particular relevance112. Most of these elements (detention of victim, sale of victim,
degrading treatment of victim, assertions of exclusivity and total control over victim) are
typically present in many reported cases of trafficking.

Another recent and helpful boost to the argument that trafficking is a form of slavery is
provided by the Statute of the International Criminal Court (ICC). The ICC’s Statute
specifically includes both “enslavement” and “sexual slavery” as crimes. Enslavement is
defined as “the exercise of any or all of the powers attaching to the right of ownership
over a person”. Enslavement includes “the exercise of such power in the course of

jus cogens see the judgement of the International Court of Justice in the Barcelona Tractions Case
of 5 February, 1970, 1970, ICJ 3 at 32, paras. 33-34. See also, American Law Institute,
RESTATEMENT (THIRD) OF THE F OREIGN RELATIONS LAW OF THE UNITED STATES, (1987), para. 702.
For a highly relevant discussion of the gendered nature of the doctrine of jus cogens see H.
Charlesworth and C. Chinkin., The Gender of Jus Cogens, 15 HUMAN RIGHTS Q UARTERLY (1993)
63.
110
A 1953 report of the UN Secretary-General to the Economic and Social Council concluded
that in the absence of any precise indication in the travaux preparatoires to the 1926 Slavery
Convention (which delineates the still-accepted definition), it might reasonably be assumed that
the drafters had in mind the power of master over slave recognized in Roman law (dominica
potestas). The characteristics of this status include its permanence the absolute nature of the
power exercised the transferability of ownership and the fact that it is inherited by descendants of
persons holding such status. Report of the Secretary-General on slavery, the slave trade and other
forms of servitude, para. 36, Footnote 1, cited in Lassen, supra note 94 at 204-205.
111
International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Judgement of Trial
Chamber II in the Kunarac, Kovac and Vukovic case, Prosecutor v. Dragoljub Kunarac, Radomir
Kovac and Zoran Vukovic, Judgement IT-96-23-T & IT-96-23/IT (22 February, 2001).[hereafter:
Kunarac Trial Chamber Judgement] .
112
Ibid, Summary of the judgement.

30
trafficking in persons, in particular women and children”113. Trafficking in this context is
not defined. While the term “sexual slavery”114 is also not defined, the accompanying
guide to interpreting crimes within the ICC’s ambit defines the actus reus of sexual
slavery as:

“1. The perpetrator exercised any or all of the powers attaching to the right of
ownership over one or more persons, such as by purchasing, selling, lending, or
bartering such a person or persons or by imposing on them a similar deprivation of
liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a
sexual nature”115.

Notably, the judgment of the ICTY referred to above goes even further than the ICC
provisions relating to both enslavement and sexual slavery in its determination that
commercial exchange and deprivation of liberty are not essential elements of the crime of
enslavement116.

What conclusion can be drawn from this analysis of the international legal prohibition on
slavery? The first and most certain finding is that in its original form, this customary
norm included only “classical” or “chattel” slavery. Such practices connect directly to the
minimum core content of the norm in relation to which no dispute exists. Certainly the
international legal position is less certain in relation to the range of institutions and
practices linked to but not identified as slavery. Despite evidence of a widening of the
norm to embrace practices that go beyond chattel slavery, it remain difficult to sustain an
absolute claim that trafficking, in all its modern manifestations, is included in the
customary and jus cogens norm prohibiting slavery and the slave trade. Egregious cases
of trafficking, involving clear elements of ownership not limited in time would provide
the strongest base for arguing the existence of slavery and the consequential application
of the slavery norm. More generally, a convincing argument could certainly be made that
the legal prohibition on an apparently limited list of practices “similar” or “analogous” to
slavery has been extended, through the necessary level of state practice and opinio juris
to include modern trafficking practices117 - particularly those involving children or debt
113
Statute of the International Criminal Court (hereafter: Rome Statute), Article 7(2)(c).
114
Rome Statute, art 7(1)(g) and arts 8(2)(b)(xxii) and 8(2)(e)(vi).
115
Report of the Preparatory Commission for the International Criminal Court, Addendum,
Finalized draft text of the Elements of Crimes, UN Doc. PCN ICC/2000/INF/3/Add.2.
116
Kunarac Trial Chamber Judgement, supra 111,paras 542 & 543. For an important discussion of
the consequences of the ICC adopting this narrower definition of sexual slavery, see the
J UDGEMENT OF THE WOMEN’S INTERNATIONAL WAR C RIMES TRIBUNAL 2000 FOR THE TRIAL OF
J APANESE MILITARY S EXUAL S LAVERY, Case No. PT-2000-I-T, 4 December, 2001, at paras 620-
631.
117
This interpretation is strengthened by the reference in the ILO Worst Forms of Child Labour
Convention to “… all forms of slavery and practices similar to slavery, such as the sale and
trafficking of children”. Convention Concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour, ILO Convention C182 (1999), Article 3(a).
[Hereinafter: Worst Forms of Child Labour Convention, 1999].

31
bondage. In summary, it is clear that international law is in a state of flux and that
changes to the customary norms are currently underway. The extent and effect of those
changes remains to be seen.

2.2.3 The prohibition on trafficking, forced prostitution and forced marriage

Between 1904 and 1933, four different international conventions dealing with the (white
slave118) traffic in women and girls were concluded119. The earliest agreement in this
series covered only situations in which women were forced or deceived into prostitution
or “debauchery” in foreign countries. The second agreement extended its scope to
situations of enticement and procurement not necessarily involving force. The third
agreement avoided any references to “white slavery” and applied the new notion of
trafficking to minors of both sexes. The 1933 Convention expanded the end-results of
trafficking to include all sexual and immoral purposes – not just prostitution. Force was
no longer a constitutive element of trafficking which now included enticement,
procurement and leading away. The cross-border element was also removed – thereby
subjecting domestic activity to the Convention’s provisions. Each of these four
instruments required States parties to take measures aimed at improving information
exchange on trafficking. Victim protection measures were also included. Notably, none
of these four instruments defined trafficking or directly addressed the issue of the legal
status of prostitution120.

In 1949 the various white slavery/trafficking agreements were consolidated into one
instrument: the Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others121. The Convention, which currently has 73
State Parties122, aims to prohibit and control the practices of trafficking, procurement and

118
The term “white slavery” originally encompassed prostitution in its entirety as it existed
through parts of Europe and the US. By the second half of the nineteenth century, “white slavery”
was being used to refer not just to prostitution but to the recruitment to prostitution by force or
fraud. Ethan A. Nadelmann, Global Prohibition Regimes: the Evolution of Norms in International
Society, 44 INTERNATIONAL ORGANIZATION (1990), 479 at 514.
119
1904 International Agreement for the Suppression of the White Slave Traffic, 1 LNTS 83;
1910 International Convention for the Suppression of the White Slave Traffic, 211 PARRY’S TS 45
(both amended by a protocol approved by the General Assembly on 3 December 1948, 30 UNTS
23) 1921 International Convention for the Suppression of Traffic in Women and Children, 9
LNTS 415 and the 1933 International Convention for the Suppression of the Traffic in Women of
Full Age, 150 LNTS 431 (both as amended by a Protocol approved by the General Assembly on
20 October 1947, 53 UNTS 13. For details of provisions and signatories and for further citations
see Bassiouni, supra note 94 at 463-466 and 471-473.
120
Lassen, supra note 94 at 202.
121
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, 96, UNTS, 271, [hereinafter TRAFFICKING C ONVENTION ]. For an
interesting overview of the legislative history of the Convention see UNESCO AND THE
C OALITION AGAINST TRAFFICKING IN WOMEN, THE P ENN STATE R EPORT. INTERNATIONAL MEETING
OF EXPERTS ON S EXUAL E XPLOITATION , V IOLENCE AND P ROSTITUTION , (1999) at Annex 1,
[hereafter, Penn State report].
122
Ratification details available from available from http://www.unhchr.ch.

32
exploitation, whether internal or cross-border and irrespective of the victim’s age or
consent. It declares both prostitution and trafficking (both undefined) to be “incompatible
with the dignity and worth of the human being” and a danger to “the welfare of the
individual, the family and the community”123. States Parties are required to punish “any
person who, to gratify the passions of another: (1) procures or entices or leads away, for
the purposes of prostitution, another person, even with the consent of that person; (2)
exploits the prostitution of another person, even with the consent of the person”124. States
Parties are also required to punish those involved in keeping, managing or financing of
brothels125 and to refrain from any system of registration or supervision of prostitutes126.
Despite its avowed abolitionist stance, the Convention does not, in fact, prohibit
prostitution – requiring States Parties only to take social and economic measures aimed at
preventing prostitution127.

Cross-border cooperation is seen to be an important tool in the fight against immigrant

prostitution/trafficking and the Convention contains a number of substantive and
procedural provisions on this issue128. Detailed guidance is also provided on the internal
coordination and centralization of anti-trafficking efforts129. Protection is also a central
theme. Foreign victims of trafficking are to have the same rights as nationals with respect
to their being party to proceedings against traffickers130. Victims of prostitution and of
trafficking are to be provided with social services for prevention of prostitution as well as
for “rehabilitation and social adjustment”131. States parties are also obliged to maintain
and care for destitute trafficking victims prior to their repatriation132. The Convention sets
out a range of measures to be taken by States Parties to prevent trafficking and
prostitution including provision of public information warning of the dangers of

123
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, Preamble, available from http://www.unhchr.ch.
124
Ibid, Article 1.
125
Ibid, Article 2.
126
Ibid, Article 6.
127
Ibid, Article 16.
128
Ibid, Article 13, 14, 15, 18.
129
Ibid, Article 14.
130
Ibid, Article 5.
131
Ibid, Article 16.
132
Ibid, Article 19(1).

33
trafficking133; supervision of employment agencies134, railway stations, airports and other
public places135; and regulation of immigration and emigration136.

The Convention still attracts a measure of political support from some States and sectors
of the NGO community. However, it has also come under considerable and wide-ranging
attack. Many women’s rights activists (and States which operate systems of licensed
prostitution) have criticized this instrument for not focusing sufficiently or solely on the
more serious, coercive forms of sexual exploitation and for failing to distinguish between
consensual and forced prostitution. It has also been noted that the Convention does not
cover modern forms of forced prostitution137 and provides no protection against
trafficking into sectors other than prostitution138 . Even those who support the
Convention’s abolitionist perspective have, on occasion, held it responsible for helping to
legitimize sexual exploitation by obscuring the manner in which prostitution violates
women’s rights and by ignoring the role of prostitution in the overall subordination of
women in society139. All commentators agree that the enforcement mechanism under the
Convention (annual reports to the UN Secretary-General to be published periodically140)
is extremely weak. It is worth noting that the Platform for Action which emerged from
the 1995 World Conference on Women makes specific reference to the Convention and
urges review and strengthening of its implementation141. Interest in the Convention has
been revived by recent efforts to develop another international legal instrument on
trafficking (the Palermo Protocol, discussed further below). Revealingly, the legal text
which emerged from those negotiations (the first international treaty on trafficking since
1949) makes no reference to its predecessor. It contains a definition of trafficking that
goes well beyond the scope of the earlier instrument and, from an operational perspective,
thereby renders it largely irrelevant. The abolitionist approach adopted by the Convention
(its single most attractive feature for some Sates and sectors of the anti-trafficking
133
Ibid, Article 17(2).
134
Ibid, Article 20.
135
Ibid, Article 17(3).
136
Ibid, Article 17(1).
137
Laura Reanda, Prostitution as a Human Rights Question: Problems and Prospects of United
Nations Action, 13 HUMAN RIGHTS QUARTERLY, 202, 210 (1991).
138
Katharina Knaus, Angelika Kartusch and Gabriele Reiter, COMBAT OF TRAFFICKING IN WOMEN
FOR THE P URPOSE OF F ORCED P ROSTITUTION (2000) at 16 [hereafter: Knaus, et al].
139
Statement by the representative of UNESCO to the 1991 session of the Working Group on
Contemporary Forms of Slavery, Report of the Working Group on Contemporary Forms of
Slavery on its Sixteenth Session, UN Doc. E/CN.4/Sub.2/1991/41 (1991), para. 38. See also PENN
STATE R EPORT, supra note 121 at 8-11.
140
Since 1974, States Parties have been required to submit these reports directly to the Sub-
Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-
Commission on the Protection and Promotion of Human Rights). ECOSOC Decision 16(LVI) of
17 May, 1974.
141
Beijing Platform for Action, §122.

34
movement) has also been made redundant by the Protocol’s implicit acceptance that
issues relating to the regulation or otherwise of prostitution are properly within the sphere
of domestic jurisdiction. In conclusion therefore, the future of the 1949 Convention
remains very much tied up with the 2000 Trafficking Protocol. Assuming this latter treaty
enters into force within a reasonable period, it is likely to fully eclipse the earlier
instrument

Prohibitions on forced prostitution and exploitation of prostitution of others have been

incorporated into the Convention on the Elimination of Discrimination Against Women.
This instrument obliges States Parties to take all appropriate legislative and other
measures to suppress all forms of traffic in women and exploitation of the prostitution of
women142. The vagueness of this provision (“appropriate measures”) makes it difficult to
ascertain the precise nature of the States Parties obligations. In the matter of scope it has
been argued that the reference to all forms of traffic expands the prohibition contained in
the 1949 Convention to cover trafficking for forced labor or marriage as well as for
prostitution143. This interpretation has not been confirmed by the Committee established
to oversee implementation of this instrument (CEDAW). However, CEDAW’s clear
tendency to focus on exploitation of the prostitution of others - rather than prostitution,
can be read as a tacit rejection of the explicit abolitionist stance of the 1949 Convention.

2.2.4 The Prohibition on forced and compulsory labor

The 1926 Slavery Convention was the first international legal instrument to refer to the
(undefined) practices of forced and compulsory labor. States Parties to the Convention
undertook to adopt all necessary measures to prevent compulsory or forced labor from
developing into conditions analogous to slavery144. The definition of forced or
compulsory labor which was first articulated in the 1930 ILO Forced Labor Convention is
still widely accepted145. Under the 1930 Convention, the term refers to “all work or
service which is extracted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily”146. The 1930 Convention
requires the criminalization of forced or compulsory labor147 in all but a limited range of
circumstances and imposes a duty on States Parties to suppress the use of such practices

142
Convention on the Elimination of all Forms of Discrimination Against Women, 28
INTERNATIONAL LEGAL MATERIALS, 1448 (1989), Article 8.
143
Knaus, et al, supra note 138 at 17. As noted by the authors of this report, the CEDAW
Committee’s General Recommendation No. 19 on Violence Against Women (11th session, 1992)
lends authority to this broader interpretation by its reference to domestic labor and organized
marriages “[i]n addition to established forms of trafficking”.
144
Convention against Slavery, Article 5.
145
The ILO definition would apply, for example, to the reference to forced labor contained in the
recently concluded Trafficking Protocol, supra note 10.
146
ILO Convention No. 29 concerning Forced or Compulsory Labor (1930), INTERNATIONAL
LABOR C ONVENTIONS AND RECOMMENDATIONS Vol I, 115-124, Article 2.
147
ILO Convention No. 29 concerning Forced or Compulsory Labor (1930), Article 25.

35
within the shortest possible period148 as well as to prosecute violations149. The ILO’s 1957
Abolition of Forced Labor Convention150 goes further, obliging States Parties to take
effective measures to secure the immediate and complete abolition of forced or
compulsory labor151. States are to “suppress and not make use of any form of forced or
compulsory labor” which is used as a means of political coercion and economic
development as well as racial, social, national or religious discrimination152. Under both
Conventions, States Parties are held accountable for the actions of corporations and
private persons153.

The Universal Declaration on Human Rights indirectly addressed the issue of forced and
compulsory labor in its provision that [e]veryone has the right to work, to free choice of
employment, to just and favorable conditions of work”154. The right to employment which
an individual freely chooses and accepts is also guaranteed in the International Covenant
on Economic, Social and Cultural Rights155. The ICCPR (along with all major regional
human rights treaties except the African Charter156), makes direct reference to forced or
compulsory labor in connection with its prohibition on slavery and servitude157.

It is relevant to note that the international prohibition on forced and compulsory labor has
never been formally invoked by a UN body in relation to a situation of trafficking, forced
prostitution or exploitation of prostitution.
148
Ibid, Article 1.1.
149
Ibid, Article 25.
150
ILO Abolition of Forced Labor Convention (ILO Convention No. 105, adopted 25 June 1957 at
the 40th session of the ILO General Congress, entered into force, January 17, 1959).
151
Ibid, Article 2.
152
Ibid, Article 1.
153
Article 4(1), ILO Convention No. 129 (1930) (“The competent authority shall not impose or
permit the imposition of forced or compulsory labor for the benefit of private individuals,
companies or associations”). ILO Convention No. 105 does not contain any specific reference to
private parties. However its application to private parties may be inferred from the obligation of
States parties to suppress any form of forced or compulsory labor as a means of mobilizing and
using labor for purposes of economic development, and as a means of labor discipline (Article 1,
paras (b) and (c)).
154
Universal Declaration of Human Rights, Article 23.
155
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 Article 6. The
Covenant also refers, in its Article 7, to the entitlement of everyone to “just and favorable
conditions of work”.
156
THE EUROPEAN C ONVENTION, supra note 102 at Art. 4(2); and the AMERICAN C ONVENTION,
supra note 103 at arts 6(2) and 6(3). While the AFRICAN C HARTER, supra note 102, does not
specifically prohibit forced or compulsory labor, it does, in Article 15, protect the rights of all
persons to “equitable and satisfactory working conditions”.
157
The International Covenant on Civil and Political Rights, supra note 103 at Article 8(3)
prohibits “forced or compulsory labor” except within certain carefully limited exceptions. On
these exceptions, see NOWAK, supra note 85 at 151-157.

36
2.2.5 Debt Bondage

Debt bondage is commonly employed as a means of compelling trafficked persons to

enter and remain in exploitative and abusive work situations. Debt bondage is defined in
the 1957 Slavery Convention as “the status or condition arising from a pledge by a debtor
of his personal services or 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”158. The Convention identifies debt bondage as a practice which is similar to
slavery159 and defines a victim of debt bondage as “a person of servile status”160. States
Parties are required to take the necessary legislative and other measures to ensure the
abolition of debt bondage161 and are to criminalize the act of “inducing another person to
place himself or a person dependent upon him into the servile status resulting from [debt
bondage]”162.

Debt bondage is said to be included within the prohibition on servitude contained in the
International Covenant on Civil and Political Rights163. It is also argued that debt bondage
has, over time, been assimilated into the broader notion of forced labor and therefore
within the ambit of ILO Convention No. 29164 as well as, presumably, the ICCPR.

2.2.6 Violence against women

International human rights law has not addressed the issue of violence against women in
any direct way165. None of the major international human rights treaties make reference to
gender-based violence and attempts to assert the existence of a prohibitive customary
norm are fraught with difficulty166. The attitude of the formal human rights establishment

158
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery, Article 1(a).
159
Ibid, Section III. – Slavery and Institutions and Practices Similar to Slavery, Article 5.
160
Ibid, Article 7(b).
161
Ibid, Article 1.
162
Ibid, Article 6.2.
163
Nowak, supra note 85 at 148.
164
David Weissbrodt and Anti-Slavery International, Updated Review of the Implementation of
and Follow-up to the Conventions on Slavery, Sub-Commission on the Promotion and Protection
of Human Rights (paper prepared in response to a request of the Working Group on Contemporary
Forms of Slavery at its 23rd session, 1998, UN Doc. E/CN.4/Sub.2/AC.2/1999/6 para. 39.
165
This omission, and the reasons behind it, have been the subject of extensive analysis. For a
useful overview, see: Preliminary Report of the Special Rapporteur on Violence Against Women,
its Causes and Consequences, UN Doc. E/CN.4/1995/42.
166
On the doctrinal obstacles to asserting that violence against women breaches customary
international law, see Hilary Charlesworth and Christine Chinkin, THE B OUNDARIES OF

37
is, however, changing slowly and violence against women is now a fixture on the
mainstream human rights agenda. From a normative perspective, two UN instruments are
significant: a General Recommendation on Violence Against Women adopted by the
Committee responsible for overseeing implementation of the Women’s Convention
(CEDAW)167 and a Declaration on Violence Against Women adopted by the General
Assembly in 1993168.

The General Recommendation circumvents the absence of any reference to violence

against women in the Women’s Convention by stipulating that the definition of
discrimination contained in its Article 1 includes gender based violence, i.e., violence that
is directed against a woman because she is a woman or that affects women
disproportionately169. According to CEDAW, gender-based violence includes “acts that
inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and
other deprivations of liberty170. The General Recommendation makes specific reference to
trafficking171, thereby identifying trafficking as a form of violence against women which
is incompatible with the equal enjoyment of rights by women. It requires States to “take
appropriate and effective measures to overcome all forms of gender-based violence,
whether by private or public act”172.

The Declaration on Violence Against Women covers all forms of gender-based violence
within the family and the general community173 as well as violence “perpetrated or
condoned by the State wherever it occurs”174. States are to “exercise due diligence to
prevent, investigate and … punish acts of violence against women whether these are
perpetrated by the State or private persons”175. As a resolution of the General Assembly,
the Declaration does not have automatic force of law. However, its potential capacity to
contribute to the development of a customary international norm on the issue of violence
against women176 should not be discounted.

INTERNATIONAL LAW: A F EMINIST ANALYSIS (2000) at 71-77 [hereafter: Charlesworth and

Chinkin].
167
General Recommendation 19, UN Doc. A/47/38 (1992).
168
General Assembly resolution 48/104, adopted 20 December, 1993.
169
General Recommendation 19, para. 6.
170
Id.
171
Ibid, paras 14, 16..
172
Ibid, para. 24. (Emphasis added).
173
Declaration on Violence Against Women, UN Doc. A/RES/48/104 (1993), Articles 1 and 2.
174
Ibid, Article 2.
175
Ibid, Article 4 (c). (Emphasis added).
176
Charlesworth and Chinkin, supra note 166 at 73.

38
2.2.7 Trafficking in and related exploitation of children

While children are naturally included in the norms and standards outlined above, the
issues of child labor, child trafficking, sale of children and child pornography have been
subject to separate legislative attention.177 The 1956 Slavery Convention was one of the
first international instruments to single children out for special protection. The
Convention identified “exploitation of children” (defined to include trafficking178) - as an
institution or practice similar to slavery to be abandoned or abolished by States parties as
soon as possible.

The Convention on the Rights of the Child179 provides a comprehensive framework for
the protection of the rights and dignity of children as well as of their empowerment. As
such, it should be considered, in its entirety, as a tool for understanding and responding to
the trafficking and related exploitation of children180. In terms of directly applicable
provisions, the Convention requires States Parties to: “take all appropriate national,
bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in
children181 for any purpose or in any form”182. Children are also to be protected from all

177
ILO Convention No. 138 on Minimum Age (1973) and ILO Recommendation 146 on
Minimum Age (1973) available from www.ilo.org. Convention No. 138 obliges States Parties to
pursue, as national policy, the abolition of child labor. The Convention’s abolitionist approach to
child labor has been criticized as contributing to the concealment of child labor and encouraging
child labor in the informal sector – from which children are most vulnerable to being trafficked.
UN Doc. E/CN.15/1995/4 (1995) para. 26.
178
The Convention covers “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 a guardian to
another person, whether for reward or not, with a view to exploitation of the child or young
person of his labor”, 1956 Slavery Convention, Article 1(d).
179
Convention on the Rights of the Child, adopted by UNGA Res 44/25 of 20 November 1989,
entry into force 2 September 1990.
180
A UNICEF – sponsored report on children and prostitution has noted the importance of looking beyond
those articles of Convention on the Rights of the Child which directly address the practice under
consideration. The report notes that one of the major strengths of the CRC is its ability to be used as a
framework for understanding and measuring child trafficking and related commercial sexual exploitation of
children in the broadest possible context. The basic articles relating to definition of the child, children’s
identity and dignity are critical in this regard as these are the aspects that are violated when trafficking-
related exploitation takes place: “indeed the reasons why all ‘protection’ articles are necessary”. Other
important provisions of the CRC from this perspective include those relating to non-discrimination,
consent, power, maturity, the best interests of the child, service provision, education, family support,
community and health care. Further on the use of the Convention as a holistic tool for understanding an
responding to sexual exploitation of children, see: Judith Ennew, Kusum Gopal, Janet Heeran, and Heather
Montgomery, CHILDREN AND PROSTITUTION: HOW CAN WE MEASURE THE COMMERCIAL SEXUAL
EXPLOITATION OF CHILDREN? LITERATURE REVIEW AND ANNOTATED BIBLIOGRAPHY (UNICEF, New
York, 2001).)
181
The Convention defines “child” as any individual under the age of 18 unless majority is
attained at an earlier age under domestic laws”, Convention on the Rights of the Child, Article 1.
182
Convention on the Rights of the Child, Art. 35. The terms “abduction”, “sale” and “trafficking” are not
defined in the Convention.

39
forms of economic exploitation183, sexual exploitation and sexual abuse184. States parties
are therefore also required to take all appropriate national, bilateral and multilateral
measures to prevent the inducement or coercion of a child to engage in any unlawful
sexual activity; the exploitative use of children in prostitution or other unlawful sexual
practices; the exploitative use of children in pornographic performances and materials185;
and the illicit transfer and non-return of children abroad186. The Convention further
requires States Parties to “take all appropriate measures to promote physical and
psychological recovery and social integration of a child victim of … any form of …
exploitation … in an environment which fosters the health, self-respect and dignity of the
child”187. While the language of the CRC on these points is strong, it has been noted that
the effect of these provisions is weakened by the Convention’s failure to require States
Parties to criminalize particular forms of conduct such as trafficking or to assume
extraterritorial criminal jurisdiction in respect of such conduct.188 The Convention’s
failure to explicitly protect the child from non-State interference in her or his rights is
also problematic in the present context189.

Other less directly relevant but still important provisions of the Convention in addition to
those identified above include the obligation on States parties to ensure that a child is not
separated from his or her guardians against his or her will except where such separation is
determined to be in the best interests of the child190; and the right of a child residing in a
different state from her or his parents to leave and enter any country191.

183
Ibid, Article 32.
184
Convention on the Rights of the Child, Art. 34.
185
Ibid, Article 34.
186
Ibid, Article 11.
187
Ibid, Article 39.
188
Leah McKeown, International Initiatives To Combat The Sale Of And Trafficking In Children
(unpublished paper on file with the author), citing Douglas Hodgson, Sex Tourism and Child
Prostitution in Asia: Legal Responses and Strategies, 9 Melbourne University Law Review
(1994) at 526. Note that these concerns are addressed, at least partially, through the adoption of
the protocol on the Sale of Children, Child Prostitution and Child Pornography, see further below.
189
A limited range of non-State actors are singled out in Article 3.1. of the Convention which
provides: “In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law or administrative authorities or legislative bodies, the best
interests of the child shall be of primary consideration. Cerone notes that the Committee on the
Rights of the Child has applied Convention provisions to non-State actors. Cerone, supra note 73
at 19. The Human Rights Committee, in one of its General comments has identified a duty of
States Parties to the ICCPR to take every possible economic and social measure “to prevent
[children] from being subjected to acts of violence and cruel and inhumane treatment or from
being exploited by means of forced labour or prostitution …”. Human Rights Committee, General
Comment 17, UN Doc. HRI/GEN/1/Rev.3 (1997).
190
Convention on the Rights of the Child, Article 9.
191
Convention on the Rights of the Child, Article 10(2).

40
An Optional Protocol to the Convention on the Rights of the Child - purporting to extend
the reach of the Convention’s provisions in relation to sale of children, child prostitution
and child pornography - has recently been finalized192. The Protocol attempts to address
the CRC weaknesses identified above by identifying the sale of children as an
international crime and requiring States Parties to criminalize and establish territorial
jurisdiction over the relevant acts. The Protocol does not, however, enjoy uniform support
and both States and NGOs have argued that certain of its provisions are, in fact, weaker
than those of the Convention193.

The prohibition against trafficking and related exploitation of children has been reiterated
and extended through the adoption of a recent ILO Convention on the worst forms of
child labor194. The Convention sets out to establish broad principles on the controversial
subject of child labor by prioritizing those forms which are most violative of the rights of
children. The abolitionist approach of former ILO instruments on this subject is thereby
rejected in favor of one which promotes the gradual elimination of child labor. The
Convention calls for “immediate and effective measures to secure the prohibition and
elimination of the worst forms of child labor as a matter of urgency195 including “all
forms of slavery or practices similar to slavery such as the sale and trafficking of
children, debt bondage and servitude and forced or compulsory labor”196. States Parties
are required to take “all necessary measures” to ensure the implementation and
enforcement of the Convention “including the provision and application of penal and
other sanctions, as appropriate”197. The accompanying Recommendation sets out, in
considerable detail, the ways in which States Parties may meet these obligations198. The
Convention is to be monitored through mechanisms to be established by States Parties as
well as through the ILO’s regular supervision process199.

192
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, General Assembly resolution 54/263, annex II). Available
from OHCHR and ILO websites.
193
Focal Point on Sexual Exploitation of Children, NGO Group for the Convention on the Rights
of the Child, Information, Issue No. 5, April 2000 at pp 13-14.
194
Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst
Forms of Child Labor, adopted 17 June, 1999 by the General Conference of the International
Labor Organization (ILO). (Hereafter: Child Labor Convention) Available from OHCHR and ILO
websites.

195
Ibid, Article 1.
196
Ibid, Article 39(a).
197
Ibid, Article 7(1).
198
R190 Worst Forms of Child Labor Recommendation, 1999, (available from www.ilo.org).
199
Child Labor Convention, Arts. 5,14.

41
2.2.8 The rights of trafficked persons as migrants and migrant workers

Does international law offer any protection to trafficked/smuggled individuals as

migrants or migrant workers? The position of migrants under international law is linked
to and determined by their status as aliens and non-nationals or non-citizens as described
above. It is relevant to note that the connection between trafficking and migration for
work is rarely made200 - a consequence perhaps, of the widespread reluctance to identify
the end results of most trafficking (forced labor, forced prostitution) as “work”. One
result of this tendency is that the rights of trafficking persons as workers – migrant or
otherwise − are rarely articulated or pursued201. The question of migrant worker’s rights
and the issue of exploitation of some migrants “in conditions akin to slavery and forced
labor”202 have been on the agenda of the wider UN system since the 1970s203. It remains
however, captive to the greater interest of most - if not all States to preserve a standard of
differential treatment between nationals and non-nationals as well as to decide who may
enter and remain within their borders. The situation of illegal migrant workers is
especially problematic, “exemplify[ing] the jurisdictional struggle between state
sovereignty and its control over immigration versus the obligation on the State to uphold
the human rights of all individuals found within a State’s territory”204.

In one sense it can be argued that the obligations towards migrant workers as migrants
have been met by non-discrimination clauses found in the major human rights treaties as
well as by international legal rules which do not permit a differentiation in the treatment
of nationals and non-nationals in the matter of fundamental human rights – said to
include the right to life and the prohibition against slavery and servitude, security of the
person, and equality before and equal protection of the law. However, as demonstrated
above, such “umbrella” clauses have, in practice, proved to be insufficient to guarantee
the rights of this group – particularly its most vulnerable members: migrant workers who

200
For example, the only book-length study of human rights and migrant workers (Cholewinski,
supra note 78) contains no reference to trafficking or to the typical end results of trafficking such
as forced prostitution.
201
For example, a recent study by Human Rights Watch has noted that the types of protection,
assistance and rehabilitation provided by the Thai government to trafficked nationals reveals a
perception that they are not in need of assistance as migrant workers. Thus: “…the services that
the [Government] provide for women victims of trafficking and other abuses abroad do not
include legal assistance in fighting for unpaid wages or financial compensation or in
understanding or challenging deportation proceedings”. Human Rights Watch, OWED J USTICE:
THAI WOMEN TRAFFICKED INTO DEBT B ONDAGE IN J APAN (2000), (X, 17, Response of the Thai
Government).
202
Economic and Social Council (ECOSOC) resolution 1706 (LIII) (1972).
203
On the history of UN action in the field of migrant workers rights, see Cholewinski, supra
note 78 at 138-142.
204
Leonard M. Hammer, Migrant Workers in Israel: Towards proposing a Framework of
Enforceable Customary International Human Rights, 17 Netherlands Quarterly of Human Rights
(1999), 5 at 5.

42
have entered and/or are residing unlawfully within the host State. The same can be said of
the more specific protections found in the generally applicable clauses of instruments
such as the International Covenant on Economic Social and Cultural Rights relating to the
right to work and to just and favourable conditions of work205.

A number of specialized instruments have been developed to address the specific human
rights abuses faced by migrant workers. The International Labour Office (ILO), a
Specialized Agency of the UN, was the first international body to take up the rights of
migrant workers206 and the role of the ILO in this area remains critical in the absence of
any alternative or complementary regime. In addition to a variety of instruments dealing
with matters such as social security and discrimination in employment207, the ILO has
developed two broad conventions protecting the rights and interests of migrant workers.
The Migration for Employment Convention (Revised) of 1949208 covers individuals who
migrate from one country to another with a view to working for an employer (i.e.: not in a
self-employed capacity). The Convention requires States Parties to, inter alia, maintain or
facilitate a reasonable and free service in order to assist migrant workers and to provide
them with correct information; to take all appropriate steps against misleading
propaganda concerning immigration and emigration; and to ensure legal equality in
matters of work (opportunity and treatment) between documented migrants and nationals.
The 1975 instrument (Convention No. 143 Concerning Migrations in Abusive Conditions
and the Promotion of Equality of Opportunity and Treatment of Migrant Workers)209
obliges States Parties to respect the basic human rights of all migrant workers210 –
irrespective of their legal status in the country of employment211. While the 1975

205
ICCPR, Articles 6,7.
206
On the history of ILO involvement with migrant workers see N. Valticos, International Labour Law,
Chapter XIV: Foreign and Migrant Workers (1979).
207
See further, Albrecht Otting, Migrant Workers and the ILO Conventions, 6 ASIAN MIGRANT,
No. 3-4 (1993) 78-89 and Cholewinski, supra note 78 at 92-98.
208
ILO Convention No. 97 (1949) concerning Migration for Employment Convention (Revised)
1949), INTERNATIONAL LABOUR C ONVENTIONS AND RECOMMENDATIONS , Vol 1, 495. The
Convention is accompanied by Recommendation No. 86 (1949) concerning Migration for
Employment (Revised), INTERNATIONAL LABOUR C ONVENTIONS AND RECOMMENDATIONS , Vol 1,
508.
209
ILO Convention (no. 143) concerning Migrations in Abusive Conditions and the promotion of
Equality of Opportunity and Treatment of Migrant Workers (1975), INTERNATIONAL LABOUR
C ONVENTIONS AND R ECOMMENDATIONS , Vol II, 1066-1067.
210
ILO Convention 143, Article 1. Cholewinski, supra note 78 at 103 cites an ILO Committee of
Experts in support of the contention that the reference to basic rights is, in fact, extremely limited
and should be taken to refer to the most fundamental of rights including the right to life, the
prohibition on torture and the right to a fair trial. It would not cover the right to equal opportunity
and treatment with nationals.(Id, at 133).
211
Cholewinski, supra note 78 at 103, citing International Labour Conference, 66th session, 1980,
Report of the Committee of Experts on the Application of Conventions and Recommendations,

43
Convention is notable as the first international legal instrument to address the issue of
illegal or irregular migration from a rights perspective, it has failed to attract widespread
support, not just from migrant-receiving States but also from migrant-sending States who
have traditionally been sceptical of the capacity of the ILO to improve the lot of migrant
workers212. Its influence on the treatment of migrant workers, including those in an
irregular situation, has consequently been minimal.

The International Convention on the Protection of the Rights of All Migrant Workers and
members of their Families was adopted by the General Assembly in 1990 after a decade
of negotiation213. The Convention applies to both documented (legal) and undocumented
(illegal or irregular) migrant workers. It stipulates that migrant workers must not be held
in slavery or servitude and that forced labor must not be demanded of them. States Parties
must provide for sanctions against persons or groups who use violence against migrant
workers, employ them in irregular circumstances, threaten or intimidate them. The
Migrant Workers Convention has thus far only been ratified by 19 States and is expected
to enter into force shortly214. However, its drafting history reveals little political support
from the major western destination countries215 and the pattern of ratifications to date
indicates that such views remain unchanged.

In conclusion, international law offers important but limited protection to trafficked

persons and smuggled migrants through their status as migrants/aliens and/or migrant
workers. The above analysis reveals a marked reluctance, on the part of States, to
empower irregular or illegal migrants by recognizing any but the most fundamental rights
as applicable to this group. In addition, the failure to identify trafficked persons or
smuggled migrants as migrant workers has served to further disconnect both groups from
the minimum protections which are available. Ultimately, therefore, trafficked persons
are unlikely to benefit, at lest in the short-term, by presenting themselves as migrant

GENERAL S URVEY OF THE REPORTS R ELATING TO C ONVENTIONS NOS. 97 AND 143 AND
RECOMMENDATIONS NOS. 86 AND 151 CONCERNING MIGRANT WORKERS (1980) at 69, para. 257.
The term ”basic human rights” is not defined and the breadth of application of this provision
continues to remain uncertain.
212
This scepticism can best be illustrated with reference to the speed with which key migrant
sending countries including Morocco and Mexico, pushed for a new Convention outside the ILO
before: ‘‘the ink on ILO Convention No. 143 had hardly dried”. Roger Bohning, The ILO and the
New UN Convention on Migrant Workers: The Past and the Future, 25 International Migration
Review 698 at 699. (hereafter: Bohning).
213
International Convention on the protection of the Rights of All Migrant Workers and members
of their Families, 30 ILM 1517, adopted by General Assembly resolution 45/158 of 18 December
1990.
214
Lists of ratifications available from www.unhchr.ch. The Convention will enter into force
when ratified or acceded to by at least 20 States.
215
On the drafting history of the Convention, see Juhani Lonnroth, The International Convention
on the Rights of all Migrant Workers and Members of their Families in the Context of
International Migration Policies: An Analysis of Ten Years of Negotiation, XXV, INTERNATIONAL
MIGRATION R EVIEW (4), 710.

44
workers. They may instead be forced to rely on the more general protections afforded to
them under international law as non-nationals of the State from which protection is
sought.

2.2.9 Other relevant rights including economic, social and cultural rights

Not all human rights violations associated with trafficking fit neatly into the analytical
categories set out above. The present section attempts to “catch” those rights and
corresponding violations which have not been examined thus far but which are
nevertheless essential to a complete analysis of trafficking as a violation of international
human rights law.

Economic, social and cultural rights

Few legal analyses of the trafficking phenomenon have considered the implications of
economic, social and cultural rights. This is not surprising. The persistent neglect of
economic, social and cultural rights by States, intergovernmental bodies and non-
governmental organizations has been well documented. Despite repeated assertions that
all rights are “equal, indivisible, interrelated and interdependent”, economic, social and
cultural rights, in comparison with political and civil rights, remain far behind in terms of
normative development, monitoring, enforcement and implementation.

Certainly, the connection between violations of economic, social and cultural rights and
trafficking is not difficult to establish or support empirically. Violations of key economic
and social rights such as the right to own and inherit property, the right to education, and
the right of opportunity to gain a living through work freely chosen or accepted (all
guaranteed under the International Covenant on Economic, Social and Cultural Rights)
have all been shown to contribute to increasing individual and group vulnerability to
trafficking and related exploitation. Poverty, (a violation of rights in itself as well as a
manifestation of a complex web of violations) has repeatedly been linked to trafficking as
both an underlying cause and an aggravating factor. Racial and gender-based
discrimination in the recognition and application of economic and social rights is also a
critical factor in rendering persons more susceptible than others to trafficking. In both
cases, the impact of discrimination results in fewer and poorer life choices. It is the lack
of genuine choice which, in turn, renders women and girls more vulnerable than men and
certain nationalities and races more vulnerable than others to the coercion, deception and
violence which are the hallmarks of trafficking.

Moving beyond an examination of causes, it is also possible to identify specific violations

of economic, social and cultural rights in subsequent phases of the trafficking cycle.
During the trafficking process itself, economic and social rights are routinely
compromised. Trafficked persons will, almost invariably, be denied the internationally
protected rights to health, to education, to work freely chosen and accepted, to fair wages
and to equal remuneration for work of equal value. The point at which a trafficked person
comes into contact with state authorities is also important vis a vis their economic and
social rights. Victims of trafficking are often in need of medical and psycho-social

45
attention and a failure to provide such attention would appear to be a clear violation of
the right to health. Non-consensual testing for sexually transmitted diseases including
HIV could also compromise a trafficked person’s rights216. Most trafficked persons have
been deprived of their wages and property and it could be convincingly argued that the
State has a duty to take steps to protect the victim’s right to property by, for example,
freezing and confiscating the assets of victims of trafficking and using such confiscated
assets to support and compensate them.

Other human rights violations in the trafficking process

The process of trafficking has been described in detail in Part One above. While
information remains sketchy and in many cases unverified, it is possible to use identified
patterns to draw some general conclusions with regard to the type and severity of human
rights violations which accompany trafficking. Restrictions on freedom of movement are
commonplace in most trafficking situations and it can be argued that such restrictions
represent a violation of an individual’s right to liberty and security of the person as well
as to freedom of movement as these are protected under the ICCPR and regional human
rights treaties217. The prohibition against torture and cruel, inhumane or degrading
treatment or punishment is often invoked in the context of trafficking218 although the
exact circumstances in which “torture” can be said to have taken place in this context
remain to be adequately clarified. The circumstances under which most trafficked persons
are forced to live will routinely compromise their right to freedom of expression and of
information and their right to peaceful assembly and freedom of association, all of which
are guaranteed under international human rights law.

The treatment of a trafficked person at the hands of the State can often compound human
rights violations committed by the traffickers. A number of countries deal with the
trafficking menace through regular “raids” in which victims of trafficking are rounded up
and either deported, prosecuted or held in “safe houses”. Clearly, the summary
deportation of a victim of trafficking operates to deprive that person of the right of access
to the courts219 and to effective and appropriate legal remedies. The prosecution of a
216
World Health Assembly, resolution 45/35: “The forty-fifth World Health Assembly
[recognises] that there is no public health rationale for any measures that limit the rights of the
individual, notably measures establishing mandatory screening”.
217
ICCPR, Article 9.
218
See, for example, Weissbrodt and Dottridge, supra note 83 at para. 24. See also Laurie Hauber, The
Trafficking of Women for Prostitution: A Growing Problem Within the European Union, 21 B.C.
INTERNATIONAL AND COMPARATIVE LAW REVIEW (1998) 183 at 187 arguing that the prohibition against
torture and inhumane and degrading treatment or punishment contained in Article 3 of the European
Convention could be used against traffickers. Susan Jeanne Toepfer and Bryan Stuart Wells, The
Worldwide Market for Sex: A Review of international and Regional Legal Prohibitions Regarding
Trafficking in Women, 2 MICHIGAN JOURNAL OF GENDER AND LAW, 83 at 118-119
go even further, arguing, on the basis of a decision by the European Court, that both forced
prostitution and pimping are prohibited under Article 3 of the European Convention. The case,
Cyprus v. Turkey (App. Nos 6780/74, 6950/75, 4 European Human Rights Rep. 482 (982))
concerned the rape of Greek women by Turkish soldiers during the Turkish occupation of Greece.
219
ICCPR, Article 14.

46
trafficked person for status-related offences (i.e. those committed as an unavoidable
consequence of the fact of that person having being trafficked such as illegal immigration
and prostitution) is also highly problematic in human rights terms220 as is their arrest and
detention, without charge, for indeterminate periods. Other human rights violations may
be more subtle. Some countries do not bother to actually identify trafficked persons at all
– preferring to treat all those illegally within their borders in the same way. If one of the
central tenets of the present thesis – that States can be found to owe particular obligations
to trafficked persons over and above other categories of migrants - is accurate, then this
failure to correctly identify them is itself a violation off their rights.

In more general terms, the failure of States to identify, prosecute and punish traffickers
including those who are involved in controlling and exploiting trafficked persons will
inevitably lead to further human rights violations against trafficked persons.

2.3 International Refugee law

International refugee law seeks to provide some measure of legal protection for persons
who are forced to flee their countries because of certain forms of persecution221. In
relation to trafficking, two questions arise for this branch of international law. First: is a
trafficked person, as a matter of principle, entitled to seek and receive asylum? Second,
under what circumstances, if any, could the act of trafficking itself consist persecution
under the refugee convention and therefore be considered as a ground for the granting of
refugee status?

In relation to the first question, it is relevant to note that an increasing number of refugees
are currently being transported across borders by smugglers and traffickers – often
because they have no other means of reaching safety222. In practice, the illegal nature of
their transport and arrival is often used against smuggled and trafficked asylum seekers
and the consequences of an asylum seeker being caught up with traffickers and smugglers

220
According to the Recommended Principles and Guidelines on Human Rights and Human
Trafficking issued by the United Nations High Commissioner for Human Rights: “Trafficked
persons shall not be detained, charged or prosecuted for the illegality of their entry into or
residence in countries of transit or destination, or for their involvement in unlawful activities to
the extent that such involvement is a direct consequence of their situation as trafficked persons”.
(Principle 7).
221
The Convention Relating to the Status of Refugees (1951) as amended by the Protocol
Relating to the Status of Refugees (1967) defines a refugee as anyone who:“[o]wing to a well-
founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his nationality and is unable,
or owing to such fear, is unwilling to avail himself of the protection of that country”. Convention
Relating to the Status of Refugees, Article 1A(2).
222
UN High Commissioner for Refugees, International Organization for Migration, Refugee
Protection and Migration Control: Perspectives from UNHCR and IOM, Global Consultations on
International Protection Doc. EC/GC/01/11, 31 May, 2001, para. 29. (hereafter: UNHCR/IOM
Perspectives).

47
are usually severe. The UN High Commissioner for Refugees (UNHCR) has observed
that:

“...an asylum seeker who resorts to a human smuggler seriously compromises his
or her claim in the eyes of many States …lead[ing] to an imputation of double
criminality; not only do refugees flout national boundaries but they also consort
with criminal trafficking gangs to do so”223.

In legal terms, however, it is not possible to deny a person refugee status (or the
opportunity to make a claim for such status) solely because that person was trafficked or
smuggled into the country of destination. In other words, asylum claims should be
considered on their substantive merits and not on the basis of the applicant’s means of
entry. In addition, all persons, including both smuggled migrants and trafficked persons
should be given full opportunity (including through the provision of adequate
information) to make a claim for asylum or to present any other justification for
remaining in the country of destination.

The question of whether trafficking itself could ever constitute a ground for granting
asylum is much more difficult. According to UNHCR, being a victim of trafficking does
not, per se, represent a valid ground for claiming refugee status224. Importantly, however,
UNHCR adds that:

“in some cases, trafficked persons may qualify for international refugee
protection, if the acts inflicted by the perpetrators would amount to persecution
for one of the reasons contained in the 1951 Convention definition, in the absence
of effective national protection”225.

Further study is clearly required to determine the link between the persecution
requirement and current trafficking practices226. It would also be helpful to examine
whether, and under precisely what circumstances individual States have granted refugee
status to trafficked persons.

223
Erica Feller, The Convention at 50: the Way Ahead for Refugee Protection, 10 F ORCED
MIGRATION R EVIEW, 6 at 7.
224
UNHCR/IOM Perspectives, supra note 222 at para. 32. This view has been borne out in
UNHCR’s own actions in Albania during 2000-1. In this situation, asylum claims from trafficked
persons were halted through a system of inter-agency referrals whereby trafficked persons were
separated from “asylum seekers” and provided with assistance and counseling on voluntary
return. The joint report from cooperating agencies on this initiative is very clear in its assumption
that no trafficked victim identified in Albania possessed a valid claim for refugee status, OSCE,
UNHCR, Government of Albania, IOM, ICMC, ANNUAL P RE -S CREENING R EPORT, 2001 (Tirana,
March, 2002).
225
UNHCR/IOM Perspectives, supra note 222 at para. 32.
226
For an interesting application of the refugee definition to trafficked persons (with particular
focus on the “well-founded fear of persecution” and “membership of a particular social group”
components of that definition), see Maya Raghu, Sex Trafficking of Thai Women and the United
States Asylum Law Response, 12 GEORGETOWN IMMIGRATION LAW J OURNAL , (1997) at 145.

48
2.4 Developments in International Humanitarian Law and International
Criminal law

International humanitarian law (IHL) is a branch of public international law developed

for and applicable in situations of armed conflict. IHL serves to protect the victims of war
as well as to regulate the methods and means of combat. It is designed to ensure respect
for human beings caught up in conflicts as well as to attenuate the hardships caused by
hostilities. International criminal law is broader in scope in the sense that it is applicable
in all situations, not just in times of conflict. Many of the most fundamental human rights
standards are included within the purview of IHL and international criminal law. The
available legal literature on trafficking does not consider the potential relevance of
international humanitarian law and international criminal law to this issue. This is despite
growing evidence that trafficking flourishes in situations of conflict and is often
accompanied by other practices which have been identified as international crimes, war
crimes and crimes against humanity. The following paragraphs do not attempt to remedy
this deficiency but rather to provide a brief overview of the relevant law and recent
developments to the extent that they impact upon the central legal issues of this paper.

While international humanitarian law does not specifically address the issue of
trafficking, it does identify and prohibit certain acts which will inevitably be connected to
trafficking in times of conflict. Thus, in addition to the prohibition on slavery and the
slave trade227, IHL specifically forbids any attack upon the honor of women in situations
of both international and internal armed conflict. Article 27 of the Fourth Geneva
Convention (1949) provides that: ‘women shall be especially protected against any attack
on their honour, in particular, against rape, enforced prostitution or any form of indecent
assault”228. Article 49 of the Fourth Geneva Convention, concerning forced deportation or
population transfers in occupied territory could also be relevant in this context229. Protocol
I Additional to the Geneva Conventions (1977) identifies “enforced prostitution” in the
context of an international armed conflict as a violation of fundamental guarantees to
which all persons in the power of a party to the conflict are entitled230. Protocol II,
applicable in situations of non-international armed conflict also prohibits both slavery and
forced prostitution231.

The recently established International Criminal Court (ICC) is expected to significantly

supplement the international legal framework for prosecuting international crimes in
times of conflict and in times of peace – including those involving sexual violence232.

227
Supra note 109.
228
Geneva Convention IV, Article 27; Protocol I, Article 75 and 76; Protocol II, Article 4.
229
Geneva Convention IV, Article 49.
230
Protocol I Additional to the Geneva Conventions (1977), Article 75(2)(b), Article 76(1).
231
Protocol II Additional to the Geneva Conventions (1977), Article 4(2)(e), Article 4(2)(f).
232
For a useful consideration of the ICC’s statute within the context of sexual violence during

49
The ICC has jurisdiction over genocide, war crimes, crimes against humanity and the
crime of aggression. The Statute provides for individual criminal responsibility for
persons who commit, attempt to commit, order, solicit, induce, aid, abet, assist or
intentionally contribute to the commission of a crime within the Court’s jurisdiction233.
This covers all persons without distinction, including on the basis of official capacity
such as head of State, member of Government or elected representative234. Importantly,
the Statute also provides for the responsibility of military commanders and other superior
authorities for crimes committed by subordinates under their control235.

Trafficking and its generally identified associated offences are included in a number of
central provisions of the ICC’s Statute. The constituent acts of “crimes against humanity”
include: [r]ape, sexual slavery236, enforced prostitution, forced pregnancy, enforced
sterilization or any other forms of sexual violence of comparable gravity”237. As noted in
section 2.2.2. above, enslavement is also listed as a constituent act of crimes against
humanity and includes: “trafficking in persons, in particular women and children”238. The
concept of war crimes is also relevant. The Statute provides that war crimes committed in
situations of international armed conflict include: “[c]omitting rape, sexual slavery,
enforced prostitution, forced pregnancy …. enforced sterilizations, or any other form of
sexual violence also constituting a grave breach of the Geneva Conventions”239. War
crimes in situations of non-international armed conflict include: “[c]omitting rape, sexual
slavery, enforced prostitution, forced pregnancy …. enforced sterilizations, or any other
form of sexual violence also constituting a serious violation of article 3 common to the
four Geneva Conventions”240.

armed conflict, see McDougall, update to final report , supra note 108 at paras 23-43.
233
ICC Statute, Article 25.
234
ICC Statute, Article 27.
235
ICC Statute, Article 28.
236
For an overview of the elements of “sexual slavery”, see the discussion at 2.2.2. above.
237
ICC Statute, Article 7(1)(g).
238
ICC Statute, Article 7(2)(c). Note that “trafficking” is not defined in the Statute.
239
ICC Statute, Article 8(2)(b)(xxii).
240
ICC Statute, Article 8(2)(e)(vi).

50
PART THREE: RECENT LEGISLATIVE AND POLICY INITIATIVES

3.1 The 2000 Palermo Trafficking Protocol241

As noted above, trafficking and related exploitation such as forced labor and forced
prostitution have traditionally been addressed within a human rights framework.
Recently, however, States have begun to link trafficking to key sovereignty/security
concerns including migrant smuggling and organized crime. One result of this shift in
emphasis has been to move this issue from the margins to the mainstream of UN political
activity.

In November 2000, the UN General Assembly adopted three instruments designed to

form the basis of a new international legal regime to fight transnational organized
crime242. The Convention Against Transnational Organized Crime243 is the “parent”
instrument. It is supplemented by two additional treaties (protocols), dealing respectively
with Smuggling of Migrants244 and Trafficking in Persons--Especially Women and
Children245. The three treaties were opened for signature at a high-level
intergovernmental meeting convened in Palermo, Italy, in December 2000. They, along
with a third protocol on Trafficking in Firearms246, are expected to enter into force within
the next few years.247 The following paragraphs provide a brief overview of the
Trafficking Protocol as well as an evaluation of its provisions from the perspective of
human rights248. It also includes a discussion of the Migrant Smuggling Protocol because
of the potential impact of this instrument on the treatment of trafficked persons.

241
This section is largely drawn from an earlier and more comprehensive study of Protocol by the
same author: Anne Gallagher: Human Rights and the New UN Protocols on Trafficking and
Migrant Smuggling: A Preliminary Analysis, 23 HUMAN RIGHTS Q UARTERLY, 2001 at 975-1004.
(Hereafter: Gallagher, 2001).
242
Transnational Organized Crime, G.A. Res. 53/111, U.N. GAOR, 53rd Sess., 85th plen. mtg., U.N. Doc.
A/RES/53/111 (1998).
243
United Nations Convention Against Transnational Organized Crime, opened for signature 12 Dec. 2000,
U.N. GAOR, 55th Sess., Annex 1, Agenda Item 105, at 25, UN Doc. A/55/383 (2000].
244
Migrant Smuggling Protocol, supra note 19.
245
Trafficking Protocol, supra note 10.
246
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and
Components and Ammunition, supplementing the United Nations Convention against
Transnational Organized Crime. The Firearms Protocol was adopted by the General Assembly in
its resolution 55/255 of 8 June, 2001. The final version of the Protocol appears as an annex to that
resolution: UN Doc. A/Res./55/255 (2001).
247
UN General Assembly Official Records, 55th sess. 62nd plenary meeting, U.N. Doc. A/55/PV.62
(2000), statement of the Secretariat.
248
For a full analysis of the Convention and the two protocols as well as an examination and evaluation of
the negotiation process, see Gallagher, 2001, supra note 241.

51
3.1.1 Scope and Purpose of the Protocol

The stated purpose of the Trafficking Protocol is two-fold: first, to prevent and combat
trafficking in persons249, paying particular attention to the protection of women and
children; and second, to promote and facilitate cooperation among States Parties to this
end250. Application of the Protocol is limited to situations of international trafficking
involving an organized criminal group251. States Parties are obliged to criminalize
trafficking and related conduct as well as to impose appropriate penalties252. As with the
Convention, the obligation to criminalize defined conduct will have the additional effect
of promoting uniformity in national anti-trafficking legislation amongst States Parties.

3.1.2 The Definition of Trafficking

According to the Protocol, “trafficking” consists of three separate elements: (i) an action,
consisting of recruitment, transportation, transfer, harboring or receipt of persons; (ii) by
means of threat or use of force or other forms of coercion, abduction, fraud, deception,
abuse of power or position of vulnerability,253 giving or receiving payments or benefits to
achieve consent of a person having control over another; and (iii) for the purpose of
exploitation (including, at a minimum, the exploitation of the prostitution of others, or
other forms of sexual exploitation, forced labor or services, slavery or practices similar to
slavery, servitude, or the removal of organs). All three elements must be present for the
Convention to become operational within a given fact-situation. The only exception is for
children for whom the requirements relating to means are waived254. The Protocol does
not define the terms slavery, forced labor, practices similar to slavery, or servitude255. In
addition, and following considerable debate during the finalization of the definition, the
Protocol does not pronounce specifically on the issue of prostitution to which trafficking
has traditionally been linked.256

249
For the Protocol’s definition of trafficking see above at Part 1and below at 3.1.2.
250
Trafficking Protocol, supra note 10 (Art 1).
251
Ibid, Article 4.
252
Ibid, Article 3.
253
The travaux preparatoires will indicate that the reference to the abuse of a position of
vulnerability is understood to refer to any situation in which the person involved has no real and
acceptable alternative but to submit to the abuse involved. Interpretative Notes for the official
records (travaux preparatoires) of the negotiation of the UN Convention against Transnational
Organized Crime and the Protocols thereto, U.N. Doc. A/55/383/Add.1 at paras 63-64 (hereafter :
Interpretative Notes).
254
Trafficking Protocol, supra note 10, Art. 3(c).
255
It may be assumed (at least for slavery, forced labor, practices similar to slavery) that accepted
definitions contained in other international legal instruments (and explored in the previous
section) will be applicable.
256
States agreed to sacrifice their individual views on prostitution to the greater goal of
maintaining the integrity of the distinction between trafficking and migrant smuggling. The
travaux preparatoires will, in fact, indicate that the Protocol addresses the issue of prostitution

52
3.1.3 The issue of child trafficking

The issue of trafficking in children was not given a high priority during the negotiations
despite pressure from the High Commissioner for Human Rights (HCHR) 257 and,
subsequently, a group consisting of HCHR, the High Commissioner for Refugees, the
IOM and UNICEF258, (the Inter-Agency Group). While many of the specific
recommendations made by these organizations were not taken up259, the Protocol does
include several important provisions which seek to ensure that trafficked persons under
eighteen years of age can benefit from a relatively greater degree of protection260. As
noted above, a determination that trafficking has taken place will not require evidence of
force or coercion if the individual involved is a child. In relation to application of the
Protocol’s protection provisions (see below), States Parties are to take into account the
special requirements of children, including appropriate housing, education, and care.261

3.1.4 Protection of Trafficked Persons

only in the context of trafficking, and that these references are without prejudice to how States
address this issue in their respective domestic laws. Interpretative Notes, supra note 253.
257
Ad-Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime,
Informal Note by the UN High Commissioner for Human Rights, U.N. Doc. A/AC.254/16 (1999),  13, 14
[hereinafter: HCHR Submission]. In this submission, the High Commissioner urged the Ad-Hoc Committee
to include special provisions to prevent trafficking in children and to protect its victims.
258
Ad-Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Note
by the UN High Commissioner for Human Rights, the UN Children’s Fund, [the UN High Commissioner
for Refugees], and the IOM on the draft protocols concerning migrant smuggling and trafficking in persons,
U.N. Doc. A/AC.254/27, [hereinafter: Inter-Agency Submission].
259
“The Protocol should include an explicit acknowledgment of the fact that children have special
rights under international law, and in particular in the light of the Convention on the Rights of the
Child; that child victims of trafficking have special needs that must be recognized and met by
States Parties; that States are obliged to take measures to prevent trafficking of children; and that
in dealing with child victims of trafficking, the best interests of the child (including the specific
right to physical and psychological recovery and social integration) are to be at all times
paramount. Also important is clear recognition of the need to fight the impunity of those
responsible for the trafficking, while at the same time ensuring that the child is not criminalized
in any way. In that context, it should be noted that the overwhelming majority of States are
already under such legal obligations through their ratification of the Convention on the Rights of
the Child. Existing international law would also appear to require States to ensure, inter alia, that
assistance and protection of child victims of trafficking is not made discretionary or otherwise
dependent on the decision of national authorities. In accordance with article 2 of the Convention,
child victims of trafficking are entitled to the same protection as nationals of the receiving State
in all matters, including those relating to protection of their privacy and physical and moral
integrity”. Ibid, at  6 & Corr.1.
260
Trafficking Protocol, supra note 10, art. 3(d).
261
Trafficking Protocol, supra note 10, art. 6(4).

53
The Protocol contains a number of important protection provisions. However, most of
these are not obligatory and assistance for and protection of trafficked persons is to be
provided “in appropriate cases and to the extent possible under domestic law”262. Subject
to either or both of these restrictions, States Parties are to: protect the privacy of
trafficking victims and ensure that they are given information on legal proceedings and
facilities to present their views and concerns during criminal procedures against
offenders;263 consider implementing a range of measures to provide for the physical and
psychological recovery of victims of trafficking;264 endeavor to provide for the physical
safety of trafficking victims within their territory;265 and ensure that domestic law
provides victims with the possibility of obtaining compensation.266 Efforts to include a
provision protecting trafficked persons from prosecution for status-related offenses such
as illegal migration, working without proper documentation and prostitution were not
successful.

3.1.5 Status and Repatriation

The status of the victim in the receiving State has always been a sensitive issue. It became
clear during the negotiation process that States would not agree to the inclusion of some
kind of right of trafficked persons to remain in the receiving country – even temporarily.
Destination countries were particularly concerned that the inclusion of such a right would
encourage illegal migration and actually benefit traffickers267. At the same time, it was
agreed that there may be a legitimate need for some victims to remain “for humanitarian
purposes and to protect them from being victimized by traffickers” 268. The Protocol
provides that the State Party is to consider adopting legislative or other measures
permitting victims of trafficking to remain in their territories temporarily or permanently
in appropriate cases269 with appropriate consideration being given to humanitarian and
compassionate factors270.

262
Trafficking Protocol, supra note 10, art. 6(1).
263
Trafficking Protocol, supra note 10, arts. 6(1) & 6(2).
264
Trafficking Protocol, supra note 10, art. 6(3). The type of assistance set forth in this paragraph is
applicable to both the receiving State and the State of origin but only as regards victims who are in their
respective territory. Interpretative Notes, supra note 253.
265
Trafficking Protocol, supra note 10, art. 6(5).
266
Trafficking Protocol, supra note 10, art. 6(6).
267
U.N. Doc. A/AC.254/4/Add.3/Rev.7 at note 27.
268
Id.
269
Trafficking Protocol, supra note 10, Article 7(1).
270
Trafficking Protocol, supra note 10 Article 7(2).

54
On the issue of repatriation, the UN High Commissioner for Human Rights expressed the
view that: “safe and, as far as possible, voluntary return must be at the core of any
credible protection strategy for trafficked persons”271. However, the drafting committee
did not agree and the final article provides that States Parties of origin are to facilitate and
accept, without undue or unreasonable delay, the return of their trafficked nationals and
those who have a right of permanent residence within their territories with due regard to
the safety of those persons 272. In returning a trafficking victim to another State Party,
States Parties of destination are required to ensure that such return is with due regard both
for the safety of the trafficked person and the status of any legal proceedings relating to
that person’s trafficking273. In order to facilitate repatriation, States Parties shall
communicate with each other in verifying nationalities as well as travel and identity
documents274. While the protocol notes that return “shall preferably be voluntary”275 the
travaux preparatoires will effectively render this concession meaningless by indicating
that these words are to be understood as not to be placing any obligation on the returning
State Party.276

3.1.6 Law Enforcement and Border Control

The Protocol’s extensive provisions relating to law enforcement and border control are
contained in Part III, entitled “Prevention, cooperation and other measures”. In the area
of law enforcement, States Parties accept a general obligation to cooperate through
information exchange aimed at identifying perpetrators or victims of trafficking, as well
as methods and means employed by traffickers277. In addition, they are to provide or
strengthen training for law enforcement, immigration and other relevant personnel aimed
at preventing trafficking as well as prosecuting traffickers and protecting the rights of
victims278. Training is to include a focus on methods to protect the rights of victims279. It
should take into account the need to consider human rights, children and gender-sensitive
issues and encourage cooperation with NGOs as well as other relevant organizations and

271
UN Doc. A/AC.254/16, para. 20.
272
Trafficking Protocol, supra note 10 Article 8.1.
273
Trafficking Protocol, supra note 10 Article 8.2.
274
Trafficking Protocol, supra note 10 arts. 8.3, 8.4.
275
Id.
276
Interpretative Notes, supra note 253, para. 73. On the issue of repatriation in the absence of consent, the
Ad-Hoc Committee agreed, during negotiations, that bilateral and multilateral agreements should be
encouraged. (U.N. Doc. A/AC.254/4/Add.3/Rev.6 (2000)).
277
Trafficking Protocol, supra note 10 art. 10.1.
278
Trafficking Protocol, supra note 10 art. 10.2.
279
Id.

55
elements of civil society280. Border controls are to be strengthened as necessary to detect
and prevent trafficking and legislative or other appropriate measures taken to prevent
commercial transport being used in the trafficking process and to penalize such
involvement281. States parties are also to take steps to ensure the integrity of travel
documents issued on their behalf and to prevent their fraudulent use282.

3.1.7 Preventing Trafficking

As with the protection provisions, the Protocol’s provisions on preventing trafficking are
optional. States Parties are required to endeavor to establish policies, programs and other
measures aimed at preventing trafficking and protecting trafficked persons from re-
victimization283. States Parties are also to endeavor to undertake additional measures
including information campaigns and social and economic initiatives to prevent
trafficking.284 These measures should include cooperation with NGOs, relevant
organizations, and other elements of civil society.285 The practice of national anti-
trafficking measures being used to discriminate against women and other groups in a
discriminatory manner, (through, for example, denying them the right to leave a country
and migrate legally) was indirectly addressed by a provision that the application and
interpretation of measures pursuant to the Protocol: “must be consistent with
internationally recognized principles of non-discrimination”286.

3.1.8 Relationship with the Migrant Smuggling Protocol

The stated purpose of the Migrant Smuggling Protocol is to prevent and combat migrant
smuggling, to promote international cooperation to that end and to protect the rights of
smuggled migrants287. The structure of this instrument is similar to the Trafficking
Protocol. Application of the Protocol is limited to situations of international migrant
smuggling involving an organized criminal group288. States Parties are required to

280
Id.
281
Trafficking Protocol, supra note 10 art. 11(2), (3), (4). The Travaux Preparatoires will note that unlike
smuggled migrants, trafficked persons may enter a country legally. Legislative and other measures taken in
accordance with this paragraph should take into account the fact that it may be more difficult for common
carriers to apply preventive measures in trafficking cases than in cases of migrant smuggling. Interpretative
Notes, supra note 253 para. 79.
282
Trafficking Protocol, supra note 10 art. 12.
283
Trafficking Protocol, supra note 10 art. 9.1.
284
Trafficking Protocol, supra note 10 art. 9.2.
285
Trafficking Protocol, supra note 10 art. 9.3.
286
Trafficking Protocol, supra note 10 art. 19.2.
287
Migrant Smuggling Protocol, supra note 19, Article 2.
288
Migrant Smuggling Protocol, supra note 19, Article 4.

56
criminalize the smuggling of migrants as well as related offences including the
production, provision and possession of fraudulent travel or identity documents289. The
Protocol includes a detailed section on preventing and suppressing the smuggling of
migrants by sea through, inter alia, empowering States to take appropriate action against
ships which are or may be engaged in the smuggling of migrants290. Importantly, when
taking such action, States Parties are to ensure the safety and humane treatment of the
persons on board291.

In contrast to the Trafficking Protocol, States Parties to the Migrant Smuggling Protocol
will not be required to consider the possibility of permitting victims to remain in their
territories temporarily or permanently. Smuggled migrants also fare worse when it comes
to repatriation. States Parties of origin are to facilitate and accept, without delay, the
return of their smuggled nationals and those who have a right of permanent abode within
their territories292 once the nationality or right of permanent residence of the returnee is
verified293. There is no requirement for either the State of origin or the State of destination
to take account of the safety of smuggled migrants in the repatriation process294. This is
despite the fact that the involvement of organized crime (itself a prerequisite for
application of the Convention) is likely to pose a serious risk to returnees. Smuggled
migrants will also not be entitled to any of the special protections which States Parties
may choose to afford trafficked persons in relation to their personal safety and physical
and psychological well-being. No entitlements are envisaged with respect to legal
proceedings or remedies against smugglers.

Implementation of the new legal distinction between trafficked persons and smuggled
migrants is likely to be both difficult and controversial. The failure of either Protocol to
provide guidance on the identification issue is a significant, and no doubt deliberate,
weakness. The potential problems are as follows:

• Under the terms of the two protocols, dealing with trafficked persons will be more
costly and impose a greater administrative burden on States than dealing with
smuggled migrants. States therefore have an incentive to ratify one and not both
protocols. For the same reasons, border authorities and immigration officials

289
Migrant Smuggling Protocol, supra note 19, Article 6.
290
Migrant Smuggling Protocol, supra note 19, Articles 7-9.
291
Migrant Smuggling Protocol, supra note 19, Article 9.1.(a).
292
Migrant Smuggling Protocol, supra note 19, Article 18.1.
293
Interpretative Notes, supra note 253, para. 113.
294
Article 18(5) does require returning States Parties to “carry out the return in an orderly manner
and with due regard for the safety and dignity of the person”. It is evident from negotiations that
this reference to safety and dignity refers only to the process of return and not to the eventual fate
of the individual concerned.

57
 responsible for identifying and categorizing irregular migrants also have an incentive
to identify such persons as being smuggled rather than as trafficked.

• The definition of migrant smuggling (illegal movement of persons across borders for
profit) is sufficiently broad to apply to all irregular immigrants whose transport has
been facilitated – trafficked persons and smuggled migrants alike. It is only the small
number of trafficked persons who enter the destination country legally who would not
be considered, prima facie, smuggled migrants. The additional elements separating
trafficking from migrant smuggling (force/coercion for purposes of exploitation) may
sometimes be obvious. However, in many cases, they will be difficult to prove
without active investigation. Both protocols appear to place the burden of proof
squarely on the individual seeking protection.

• As noted above, it is increasingly common for an individual to begin his or her

journey as a smuggled migrant – only to be forced, at journey’s end, into an
exploitative “trafficking” situation. Nothing in either Protocol acknowledges this
operational link between smuggling and trafficking.

The failure of the drafting Committee to discuss such obvious issues is clear evidence of
an unwillingness, on the part of States, to relinquish any measure of control over the
migrant identification process. Trafficked persons will indeed be accorded a greater level
of protection than their smuggled counterparts under the new regime - but only if the
destination country is able to decide who has been trafficked and who has been smuggled.
While States Parties retain full capacity to decide who is a smuggled migrant and who is
a trafficked person, the additional protections granted to the latter group are likely to be
of limited practical utility.

3.1.9 Evaluation of the Trafficking Protocol

The Protocol can, in many respects, be seen as a significant step forward in the fight
against trafficking and related exploitation. One important achievement has been the
securing of an internationally agreed definition of trafficking. Incorporation of a common
understanding of trafficking into national legislation will allow States Parties to cooperate
and collaborate more effectively than ever before. Common definitions will also assist in
the urgent tasks of developing indicators and promoting uniform data collection
procedures.

The extent to which the Protocol actually contributes to eliminating trafficking and
migrant smuggling remains to be seen. Major weaknesses include the optional nature of
key protection provisions and the failure to explicitly acknowledge a victim’s right of
access to information and remedies. Both deficiencies are likely to undermine the
Protocol’s effectiveness as a law enforcement instrument by ensuring trafficked persons
continue to have little incentive to cooperate with national law enforcement authorities.
The lack of any kind of review or supervisory mechanism is also a significant limitation
which will no doubt undermine political commitment to the Protocol and, thereby, its
eventual effectiveness.

58
Another major weakness is the absence of any guidance on the process by which
trafficked persons are to be identified. The Canadian Refugee Council has picked up on
this issue: “If authorities have no means of determining among the intercepted or arrested
who is being trafficked, how do they propose to grant them the measures of protection
they are committing themselves to?”295 The regime created by the Convention and the
Trafficking and Migrant Smuggling Protocols and explained above, creates a clear
incentive for national authorities to identify irregular migrants as smuggled rather than
trafficked. The drafting Committee did not address the possibility of individuals being
wrongly identified. The resulting gap is likely to seriously compromise the practical value
of the Protocol’s already weak protection provisions.

3.2 The SAARC Convention

The SAARC Convention on Preventing and Combating Trafficking in Women and

Children for Prostitution was adopted by the South Asian Association for Regional
Cooperation in January, 2002. The members of SAARC are Bangladesh, Bhutan, India,
the Maldives, Nepal, Pakistan and Sri Lanka. The significance of this instrument lies in
its status as the first-ever regional treaty to deal specifically with the trafficking issue.
The following paragraphs set out to trace the drafting history of the Convention and to
provide an overview of its principle provisions. A preliminary assessment of the
Convention in terms of its potential effectiveness is also made.

3.2.1 Drafting History

The issue of trafficking in women and children was initially taken up by South Asian
Association for Regional Cooperation (SAARC) at a Foreign Ministers Meeting held in
December 1996296. At the Ninth SAARC Summit, held in the Maldives in May, 1997,
participants adopted a resolution on trafficking in women and children that called for the
elaboration of a regional convention297. The Government of Bangladesh took
responsibility for elaborating the first draft that was discussed at a technical meeting held
in Kathmandu in September 1997. The second draft of the Convention was produced by
the Government of India and discussed within an Expert Committee meeting held in
Delhi in June 1998. The draft Convention was considered by the SAARC Heads of State
or Government at the Tenth SAARC Summit, held in Colombo in July, 1998. The

295
Canadian Council for Refugees, Migrant Smuggling and Trafficking in Persons, 20 Feb. 2000, available
from http://www.web.net/~ccr/traffick.htm (Oct. 2000).
296
For additional details on the drafting history of the Convention see International Movement
against all forms of racial Discrimination, Final Report: South Asian Dialogue on Trafficking in
Women and Children, Towards the Adoption of a SAARC Convention, 11-12 February, 1999,
Colombo, Sri Lanka. Available from: imadr.org/project/petw/Colombo.final.report.1999.html.
(Hereafter: IMADR SAARC Report).
297
Declaration of the Ninth Summit of the Heads of State or Government of the Member
Countries of the South Asian Association for Regional Cooperation, issued on 14 May 1997, in
Male, para 27.

59
Convention was finally adopted at the eleventh SAARC Summit, held in Nepal in
January, 2002.

3.2.2 Overview of key provisions

The stated purpose of the Convention is to promote cooperation amongst SAARC

countries to effectively deal with the prevention, interdiction and suppression of
trafficking and the repatriation and rehabilitation of victims. The Convention also seeks
to prevent the use of women and children in international prostitution networks,
especially within SAARC countries298. States Parties are required to make trafficking,
and involvement in trafficking, a criminal offence to which appropriate penalties apply299.
These offences are also to be regarded as extraditable offences in any existing extradition
treaty and, in addition, to the extent possible under national law300. Where extradition is
not possible, States parties are to ensure that offending nationals are prosecuted and
punished by their own courts301. The Convention sets out a range of “aggravating
circumstances” which can be taken into account during the judicial consideration of
trafficking offences including involvement in an organized criminal group or
international organized criminal activities; the use of arms or violence and the
victimization or trafficking in children302. The abuse of public authority to commit
trafficking offences is also to be considered an aggravating circumstance303.

The Convention contains detailed provisions on mutual legal assistance – designed to

ensure improved cooperation in relation to investigations, inquiries, trials and other
proceedings304. Such assistance is to include regular information exchange aimed at
identifying trafficking patterns and routes as well as possible bilateral mechanisms305. At
the national level, States Parties are required to provide the resources, training and
assistance necessary for the investigation and prosecution of trafficking offences306. Law
enforcement officials and the judiciary are to be sensitized to the issue of trafficking
including the factors that encourage such trafficking307. The Convention includes an

298
SAARC Convention, supra note 12, Article II.
299
SAARC Convention, supra note 12, Article III.
300
SAARC Convention, supra note 12, Article VII.
301
Id.
302
SAARC Convention, supra note 12, Article III.
303
Id.
304
SAARC Convention, supra note 12, Article VI.
305
SAARC Convention, supra note 12, Article VIII.4,5.
306
SAARC Convention, supra note 12, Article VIII.1.
307
SAARC Convention, supra note 12, Article VIII.2.

60
optional provision relating to the supervision of employment agencies in order to prevent
trafficking under the guise of employment308.

In terms of protection and assistance to victims, key provisions for countries of

destination are framed within the context of repatriation. States Parties are required to
provide assistance (including legal advice and health care) to trafficking victims pending
their repatriation309. States Parties (presumably countries of origin) are also to establish
protective homes or shelters for the rehabilitation of trafficked persons310. The
Convention encourages States Parties to seek the involvement of “recognized non-
governmental organizations” in the establishment of such homes or shelters as well as
more generally in prevention, intervention and rehabilitation311. The Convention requires
States Parties to promote awareness of the problem of trafficking and its underlying
causes, “including the projection of negative images of women”, as well as to endeavor to
focus preventive and development efforts on source areas for trafficking312.

The Convention requires the establishment of a regional task force consisting of officials
of the Member States to facilitate implementation of the Convention as well as to
undertake periodic reviews. The task force will also make recommendations regarding
the establishment of a voluntary fund for the rehabilitation and reintegration of victims of
trafficking313. A first report on effective implementation of the Convention is to be
prepared by the SAARC Secretariat and presented to the next meeting of the Council of
Ministers314.

3.2.3 Evaluation of the Convention

In its draft form, the Convention attracted considerable attention from human rights
NGOs and women’s groups throughout South Asia - all of whom expressed concern over
certain elements of its central provisions315. Most of these concerns were not resolved in

308
SAARC Convention, supra note 12, Article VIII.6.
309
SAARC Convention, supra note 12, Article IX,1,2.
310
SAARC Convention, supra note 12, Article IX,3.
311
SAARC Convention, supra note 12, Article IX. 4,5.
312
SAARC Convention, supra note 12, Article VIII.8.
313
Declaration of the Heads of State and Government at the Eleventh SAARC Summit, 4-6
January, 2002, Kathmandu Nepal, para. 23.
314
Ibid, para. 22.
315
See, for example, IMADR SAARC Report, supra note 296, Press release: Combating
Trafficking in Women and Children and Ensuring Food Security, Colombo, Sri Lanka, July 25-26,
1998 (copy on file with the author); letter from the Participants of the SAARC People’s Forum to
the Honorable heads of the State and Government of the SAARC Countries, Subject: proposed
amendments to the SAARC Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution, July 27, 1998 (copy on file with the author); Special Rapporteur on
violence against women, its causes and consequences, position paper on the draft SAARC
Convention on preventing and Combating Trafficking in Women and Children for Prostitution,

61
the final draft. The following issues may need to be considered by the SAARC member
states when reviewing the Convention with a view to strengthening its potential relevance
and effectiveness:

Key Issue 1: The definition of Trafficking:

The Convention defines trafficking as: “the moving, selling or buying of women or
children for prostitution316 within and outside a country for monetary or other
considerations with or without the consent of the person subject to trafficking”317. The
person subject to trafficking refers to: “women and children victimized or forced into
prostitution by the traffickers by deception, threat, coercion, kidnapping, sale, fraudulent
marriage, child marriage or any other unlawful means”.318

The definition of trafficking adopted by the Convention has been criticized for its
reference to “consent” which has been interpreted as an invitation to attacks on migrant
prostitution. It is evident that the Convention’s definition does, in several places, conflate
trafficking and prostitution. However, concern that this provision could be used to attack
consensual migration for work in the sex industry may be overstated – in legal if not in
policy terms. When read together with the definition of “person subject to trafficking” it
appears that consensual migration could only ever be included within the ambit of the
Convention in the unlikely event that the relevant individual could be shown to have
consented to deception, threat, coercion, kidnapping, sale, etc. Irrespective of its eventual
purpose, migration which is not marked by one of these defining features cannot, under
the Convention, be considered as trafficking.

Other issues raised by the definition of trafficking include its limitation to women and
children and to prostitution. It is well established that trafficking also affects men in this
part of the world and there does not seem to be any sound reason to exclude men from its
protective ambit. It is also widely accepted that trafficking in South Asia takes place for a
range of end-purposes including child labor and forced labor. The Convention’s self
imposed limitation in this regard is likely to undermine its credibility and that of its
sponsors in the eyes of the many individuals caught up in exploitative situations outside
the sex industry.

It is both puzzling and unfortunate that the Convention did not simply adopt the
definition of trafficking set out in the recently concluded UN Protocol. Most of the
SAARC Member States had been involved in negotiations on this instrument and were
therefore part of the broad and carefully constructed consensus which developed around

submitted by the Special Rapporteur on violence against women, 27 August, 1999 (copy on file
with the author).
316
The Convention defines “prostitution” as “the sexual exploitation or abuse of persons for
commercial purposes”. SAARC Convention, supra note 12, Article I.2.
317
SAARC Convention, supra note 12, Article I.3.
318
SAARC Convention, supra note 12, Article I.5.

62
the first-ever international legal definition of trafficking. In addition to reinforcing this
international consensus, the SAARC Member-States, by adopting the Protocol’s
definition, could have avoided most, if not all of the problems identified above.

Key Issue 2: Trafficking of Children

The Convention generally treats women and children equally – making no allowance for
the relatively greater agency of women and the particular situation and needs of trafficked
children319. The UN High Commissioner for Human Rights has recognized that the
particular physical, psychological and psychosocial harm suffered by trafficked children
and their increased vulnerability to exploitation require that they be dealt with separately
from adult trafficked persons in terms of laws, policies, programs and interventions320.
The Convention’s preamble does make passing reference to the Convention on the Rights
of the Child (which has been ratified by all SAARC Member-States). However, there is
no other reference, in the entire text, to the fact that the best interests of the child should
be a primary consideration in all actions concerning trafficked children; that child victims
of trafficking should be provided with appropriate assistance and that full account should
be taken of their special rights and needs321.

Key Issue 3: Assistance, Protection and Repatriation provisions

The Convention assumes automatic repatriation of trafficked person to countries of

origin. While this will most often be the only credible option available, it is important to
keep in mind that automatic repatriation, without considerations as to safety may
compound and extend human rights violations rather than halting them. This is
particularly the case when organized criminal networks are involved in trafficking. It is
important that trafficked persons be offered legal alternatives to repatriation in cases
where it is reasonable to conclude that such return would pose a serious risk to that
person’s safety and/or the safety of their families.

The Convention includes a number of important assistance and protection provisions,

several of which go beyond their strictly optional equivalents contained in the UN
Trafficking Protocol. For example, as noted above, States Parties are required to provide
legal advice and health care to victims of trafficking pending their repatriation as well as
suitable provision for their care and maintenance322. Rehabilitation of trafficked persons
in protective homes or shelters is also envisaged with States Parties being required to
make “suitable provisions” for granting legal advice, counseling, job-training and health-

319
The only concession in this respect is the identification of trafficking in children as an
aggravating circumstance which courts can take into account in the factual circumstances which
make the commission of such offences particularly grave. SAARC Convention, supra note 12,
Article IV.1.e.
320
Trafficking Principles and Guidelines, supra note 16, Guideline 8.
321
Id.
322
SAARC Convention, supra note 12, Article IX.2.

63
care facilities323. While the terminology is fairly vague, it should provide sufficient
foundation upon which more detailed guidelines on protecting and assisting trafficked
persons can be built. The specific reference to NGO involvement in rehabilitation324 will
hopefully help to avoid the common situation in which trafficked persons are detained
“for their own good” and treated as social misfits in need of re-education before being
allowed back into society325.

Summary:

The SAARC Trafficking Convention is an important acknowledgement, on the part of

some of the key countries of the region, of the growing threat of trafficking. Through
their adoption of this instrument, the heads of SAARC countries have, in the words of
their own declaration, “expressed their collective resolve to treat the trafficking in women
and children for commercial sexual exploitation as a criminal offence of a serious
nature”326. This is indeed an important step in the right direction and one which deserves
both encouragement and support. At the same time, it must be noted that in many
respects, the Convention falls short of current thinking and “best practice” on trafficking.
Informal discussions at the Eleventh SAARC summit indicated that a review of the
Convention would be possible in the foreseeable future. While the nature and extent of
that review is currently unclear, it nevertheless presents a valuable opportunity for re-
examination of certain issues including those outlined above. The involvement of
national human rights institutions and civil society in this review process will no doubt be
critical to a positive rights-orientated outcome.

3.3 The Recommended Principles and Guidelines on Human Rights and Human
Trafficking issued by the UN High Commissioner for Human Rights

3.3.1 Background and context

Since 1998, the High Commissioner for Human Rights has given priority to the issue of
trafficking in persons – especially women and children. The overall goal of OHCHR’s
work in this sector is the integration of human rights into international, regional and
national anti-trafficking initiatives through legal and policy development. The High
Commissioner for Human Rights is now widely recognized as a voice of leadership on
this issue and OHCHR has become one of the key anti-trafficking agencies within the UN
system327. In the area of international legal development, OHCHR has been especially
323
SAARC Convention, supra note 12, Article IX.3.
324
SAARC Convention, supra note 12, Article IX.5.
325
There are many documented cases of trafficked persons being rounded up and deprived of
their liberty in “safe houses” or “shelters” run by governments and by non-governmental
organizations. The Convention’s use of the term “rehabilitation” rather than “reintegration” or
“recovery’ may be questioned in this context.
326
Declaration of the Heads of State and Government at the Eleventh SAARC Summit, 4-6
January, 2002, Kathmandu Nepal, para. 22.
327
Detailed information on the progress of the Program and its future direction is contained in the

64
active. In July, 2002, the then High Commissioner transmitted her Recommended
Principles and Guidelines on Human Rights and Human Trafficking to the Economic and
Social Council of the UN (ECOSOC)328. In her report accompanying this document, the
former High Commissioner explained that development of the Principles and Guidelines
began in 2000 in response to the clear need for practical, rights-based policy guidance on
the trafficking issue. The Recommended Principles and Guidelines are the result of a
wide-ranging informal consultation involving individual experts and key
intergovernmental organizations, agencies and programs. Their purpose is to promote and
facilitate the integration of a human rights perspective into national, regional and
international anti-trafficking laws, policies and interventions. The former High
Commissioner noted that she adopted the Recommended Principles and Guidelines as a
framework and reference point for the work of OHCHR on this issue. The then High
Commissioner encouraged States and intergovernmental organizations to make use of the
Principles and Guidelines in their own efforts to prevent trafficking and to protect the
rights of trafficked persons329.

3.3.2 The Principles on Human Rights and Human Trafficking

The Recommended Principles on Human Rights and Human Trafficking are especially
relevant to the present study as they cover almost every key legal issue which has been
raised with reference to trafficking. For that reason, they are reproduced in full below:
The primacy of human rights

1. The human rights of trafficked persons shall be at the centre of all efforts to prevent and
combat trafficking and to protect, assist and provide redress to victims.

2. States have a responsibility under international law to act with due diligence to prevent
trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons.

3. Anti-trafficking measures shall not adversely affect the human rights and dignity of persons,
in particular the rights of those who have been trafficked, and of migrants, internally displaced
persons, refugees and asylum-seekers.

Preventing trafficking

4. Strategies aimed at preventing trafficking shall address demand as a root cause of trafficking.

5. States and intergovernmental organizations shall ensure that their interventions address the
factors that increase vulnerability to trafficking, including inequality, poverty and all forms of
discrimination.

recent report of the Secretary-General to the Fifty-eighth session of the Commission on Human
Rights (E/CN.4/2002/80).
328
Trafficking Principles and Guidelines, supra note 16.
329
Report of the High Commissioner for Human Rights to the Economic and Social Council, UN
Doc. E/2002/68 at para 62

65
 6. States shall exercise due diligence in identifying and eradicating public-sector involvement or
complicity in trafficking. All public officials suspected of being implicated in trafficking shall be
investigated, tried and, if convicted, appropriately punished.

Protection and assistance

7. Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry
into or residence in countries of transit and destination, or for their involvement in unlawful
activities to the extent that such involvement is a direct consequence of their situation as
trafficked persons.

8. States shall ensure that trafficked persons are protected from further exploitation and harm and
have access to adequate physical and psychological care. Such protection and care shall not be
made conditional upon the capacity or willingness of the trafficked person to cooperate in legal
proceedings.

9. Legal and other assistance shall be provided to trafficked persons for the duration of any
criminal, civil or other actions against suspected traffickers. States shall provide protection and
temporary residence permits to victims and witnesses during legal proceedings.

10. Children who are victims of trafficking shall be identified as such. Their best interests shall
be considered paramount at all times. Child victims of trafficking shall be provided with
appropriate assistance and protection. Full account shall be taken of their special vulnerabilities,
rights and needs.

11. Safe (and, to the extent possible, voluntary) return shall be guaranteed to trafficked persons
by both the receiving State and the State of origin. Trafficked persons shall be offered legal
alternatives to repatriation in cases where it is reasonable to conclude that such repatriation
would pose a serious risk to their safety and/or to the safety of their families.

Criminalization, punishment and redress

12. States shall adopt appropriate legislative and other measures necessary to establish, as
criminal offences, trafficking, its component acts330 and related conduct331.

13. States shall effectively investigate, prosecute and adjudicate trafficking, including its
component acts and related conduct, whether committed by governmental or by non-State actors.

330
The Principles include a footnote at this point as follows: “For the purposes of these Principles and
Guidelines, the “component acts” and “component offences” of trafficking are understood to include the
recruitment, transportation, transfer, harboring or receipt of persons over eighteen years of age by means of
threat, force, coercion or deception for the purpose of exploitation. The recruitment, transportation transfer,
harboring or receipt of a person under eighteen years of age constitute component acts and component
offences of trafficking in children. Source: Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime, article 3(a), 3 (c).”
331
The Principles include a footnote at this point as follows: “For the purposes of these Principles and
Guidelines, conduct and offences “related to” trafficking are understood to include: exploitation of the
prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices
similar to slavery and servitude. Source: Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against Transnational
Organized Crime, article 3 (a).”

66
 14. States shall ensure that trafficking, its component acts and related offences constitute
extraditable offences under national law and extradition treaties. States shall cooperate to ensure
that the appropriate extradition procedures are followed in accordance with international law.

15. Effective and proportionate sanctions shall be applied to individuals and legal persons found
guilty of trafficking or of its component or related offences.

16. States shall, in appropriate cases, freeze and confiscate the assets of individuals and legal
persons involved in trafficking. To the extent possible, confiscated assets shall be used to support
and compensate victims of trafficking.

17. States shall ensure that trafficked persons are given access to effective and appropriate legal
remedies.

3.3.3 Overview of the Guidelines

The Guidelines on Human Rights and Human Trafficking seek to expand upon the
Principles while placing them in practical perspective. They are organized as follows:

Guideline 1: Promotion and protection of human rights

The first Guideline sets out the steps which States and other entities should consider
taking to ensure that the trafficked person and her rights are placed at the centre of any
measures taken to prevent and end trafficking and that such measures do not adversely
affect the rights and dignity of individuals. Consultation with national human rights
institutions in the development, adoption, implementation and review of anti-trafficking
legislation, policies and programs is recommended. Guideline 1 also recommends that
consideration be given to entrusting independent national human rights institutions with
the responsibility of monitoring the human rights impact of anti-trafficking laws, policies,
programs and interventions.

Guideline 2: Identification of trafficked persons and traffickers

The protections which are afforded to trafficked persons under international and domestic
law can only ever be utilized if these individuals are identified correctly and not treated as
criminals or smuggled migrants. Guideline 2 sets out the practical consequences of the
responsibility on States to ensure that such identification can and does take place.

Guideline 3: Research, analysis, evaluation and dissemination

This Guideline notes that effective and realistic responses to trafficking must be based on
accurate and current information. State and other entities are asked to consider adopting
and consistently using the definition of trafficking contained in the Palermo Protocol.
Recommendations are also provided regarding the ways in which information can be
collected and analyzed; developing appropriate research methodologies, recognizing the
role which trafficked persons and non-governmental organizations could play in
improving understandings of trafficking; and the need to monitor the relationship
between intent and impact with regard to anti-trafficking interventions.

Guideline 4: Ensuing and adequate legal framework

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The chapeau to this Guideline notes that the lack of specific and/or adequate legislation
has been identified as a major obstacle in the fight against trafficking. The Guideline sets
out the major issues for inclusion in an appropriate legal framework that is consistent
with relevant international instruments and standards including international human rights
law.

Guideline 5: Ensuring and adequate law enforcement response

This Guideline recognizes the critical role which law enforcement can play in creating
disincentives for traffickers and therefore impacting on demand. The Guideline notes that
an effective law enforcement response depends on the cooperation of trafficked person
and witnesses which in turn is dependent upon a certain level of trust in the legal system
and the ability of law enforcement authorities to ensure the safety and well-being of
trafficked persons.

Guideline 6: Protection and support for trafficked persons

This Guideline notes that the trafficking cycle cannot be broken without attention to the
rights and needs of those who have been trafficked. It is essential that appropriate
protection and support be extended to all trafficked persons without discrimination.
Key issues dealt with in Guideline 6 include the provision of shelter, healthcare,
information and support to trafficked persons, protection of their privacy and safe return
or resettlement.

Guideline 7: Preventing Trafficking

Demand is identified as a root cause of trafficking. An understanding of the factors that
generate demand for exploitative commercial sexual services and exploitative labor – and
the development of measures to address these issues is therefore key to preventing
trafficking. States and other entities are encouraged to also take into account the factors
that increase vulnerability to trafficking including inequality, poverty and all forms of
discrimination and prejudice. This Guideline also recommends that States review and
modify policies that may compel people to irregular and vulnerable labor migration and
to examine ways of increasing opportunities for legal, gainful and non-exploitative labor
migration.

Guideline 8: Special measures for the protection and support of child victim of trafficking
The inclusion of a separate guideline on the issue of child trafficking is an important
recognition of the particular harm suffered by trafficked children and the need for their
separate and special treatment in relation to laws, policies, programs and interventions.
The Guideline identifies the “best interests” principle as the primary consideration in all
actions involving trafficked children. Key additional recommendations include ensuring
that procedures are put in place for rapid identification of trafficked persons and ensuring
that child victims of trafficking are not subject to criminal proceedings or sanctions for
offences relating to their situation as trafficked person.

Guideline 9: Access to Remedies

This Guideline reiterates and extends the Recommended Principle that trafficked persons,
as victims of human rights violations, have an international legal right to adequate and

68
appropriate remedies. In practice, this right is rarely made accessible to trafficked persons
and the Guideline therefore focuses on the ways in which states and other entities can
help trafficked persons realize their right to adequate and appropriate remedies.

Guideline 10: Obligations of peace-keepers, civilian police, and humanitarian and

diplomatic personnel
There are growing indications that some peace-keepers, peace-building, civilian policing,
humanitarian and diplomatic personnel have been implicated in trafficking as both
traffickers and “consumers”. The involvement of such persons raises special concerns
and Guideline 10 notes that States, intergovernmental and non-governmental
organizations have a responsibility to prevent their nationals and employees from
engaging in trafficking and related exploitation. They are also required to investigate
allegations and to provide for and apply appropriate sanctions. Guideline 10 sets out the
steps which can be taken by States and other entities to ensure effective discharge of
these legal responsibilities.

Guideline 11: Cooperation and coordination between States and regions

This guideline notes that trafficking is a regional and global phenomenon. A strengthened
national response, if not reinforced by other countries, can often just mean that the
operations of traffickers are moved elsewhere. The combating of trafficking is therefore
heavily dependent on international, regional and bilateral cooperation. The guideline
encourages the adoption of bilateral agreements (including labor migration agreements),
the elaboration of regional or sub-regional treaties on trafficking using the Palermo
Protocol and international human rights law as a baseline and framework, development of
cooperative arrangements relating to the investigatory and judicial processes and
cooperation between NGOs in countries of origin, transit and destination.

3.3.4 The relative significance of the Principles and Guidelines

Unlike the key human rights instruments, the Palermo Protocol and the SAARC
Convention, the Recommended Principles and Guidelines on Human Rights and Human
Trafficking are not legal texts. They do not enjoy the force of law and cannot, on their
own, be identified as or become a source of obligation for States. However, this does not
discount the possibility that certain aspects of the Principles and Guidelines: (i) are based
upon established customary rules of public international law to which all States are bound
including those relating to state responsibility and fundamental human rights; and/or (ii)
reiterate norms contained in existing international agreements. The Office of the High
Commissioner for Human Rights is currently undertaking a legal analysis of the
Principles with a view to determining, as far as possible, the nature and extent of their
legal basis.

PART FOUR: NATIONAL SITUATIONS AND RESPONSES TO TRAFFICKING

IN REGIONAL COUNTRIES WITH NATIONAL HUMAN RIGHTS
INSTITUTIONS

69
As noted above, the covert nature of trafficking makes it difficult, if not impossible, to
obtain a definitive picture of its nature and scope. The following analyses of APF-
member countries do not purport to be exhaustive but rather to serve as an overview and
summary of the general situation as it is commonly understood both within and outside
each country. Governmental and intergovernmental information sources have been used
where possible, backed up, as necessary, by data from reputable non-governmental
organizations working on trafficking or related issues.

It is important to note that where figures are given for the number of persons trafficked
into, out of or through a particular country or region, these statistics are, in all cases,
unverified and therefore inherently unreliable. Caution should therefore be used in
relying on or reproducing such data, irrespective of its original source. Ultimately, the
scale of the problem is less important than its degree of seriousness as a violation of the
fundamental rights of the human person332.

4.1 Australia

Australia is considered primarily a country of destination for trafficked persons.

Trafficked persons, mostly women and children, arrive by sea or air and predominantly
work in the sex industry. Women are reported to be trafficked to Australia from
Afghanistan, China, Indonesia, Iraq, Malaysia, Pacific Island Nations, the Philippines, the
Republic of Korea, Thailand, Vietnam, the former Soviet Union, the Middle East and
South Africa. More than 600 women were found working illegally in brothels in
Australia between 1998 and 2001.333 Information is not available on how many of these
women had been trafficked or, indeed, whether attempts had been made to ascertain the
conditions under which they traveled to and had been working in Australia. Studies have
indicated that trafficked women and children often enter Australia on false documents or
on student visas and are sometimes accompanied by a minder, posing as a mother or aunt.
Reportedly a number of these women do intend to take up work in the sex industry,
however they are often mislead as to the conditions of their work and, upon arrival, are
forced to work off ‘debts’334. Internal trafficking within Australia has also been detected,
most notably between the major urban centers.

Legislation
There is no legislation dealing specifically with trafficking in Australia, however the
Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) creates

332
This point was made by of of the UN’s early investigators into the trafficking phenomenon, J.
Fernand-Laurent, Report of the Special Rapporteur on the Suppression of the Traffic in Persons
and the Exploitation of the Prostitution of Others, UN Doc. ECOSOC E/1983/7, at 14.
333
“Life as a commodity, to be bought and sold”, The Age, 5 June 2001.
334
See Brockett, L. and Murray, “Thai sex workers in Sydney” in R. Perkins, G. Prestage, R. Sharp and F.
Lovejoy (eds), SEX WORK AND SEXWORKERS IN AUSTRALIA, University of New South Wales
Press, Sydney. See also Tailby, R. “Organized Crime and People Smuggling/Trafficking to Australia” in
AUSTRALIAN INSTITUTE OF CRIMINOLOGY: TRENDS AND ISSUES, No 209, 2001, available
from http://www.aic.gov.au/publications/tandi/ti208.pdf

70
offences of ‘sexual servitude’335, slavery336 and the deceptive recruitment of a person to
perform sexual services. Sexual servitude is punishable by up to 15 years imprisonment,
or 19 years if the victim is under 18 years of age. Slavery incurs a maximum penalty of
25 years imprisonment, and deceptive recruitment 7 years imprisonment, or 9 years if the
victim is aged under 18. Deceptive recruitment is defined as deceiving a person as to the
fact that their employment is for sexual services337. The element of deception is, therefore,
limited to the nature of the work. This excludes cases where a person has come to
Australia aware that they have been engaged to perform sexual services, but have been
deceived as to the conditions of the work.

The Criminal Code is not, as yet, federally enforced, and therefore its effectiveness is
limited. A number of states and territories have incorporated these provisions in their
criminal legislation. There have been no prosecutions under this legislation as at July
2002. Another obstacle to anti-trafficking measures is that while having jurisdiction to
deal with the transnational movement of people, the Australian Federal Police (AFP) does
not currently have a unit dedicated to investigating trafficking or sexual slavery.
The Crimes (Child Sex Tourism) Amendment Act 1994 (Cth) proscribes Australians
overseas engaging in sexual activities with children under the age of 16, inducing
children under the age of 16 to engage in sexual activities and encouraging or benefiting
from such activities. The Act provides for the prosecution in Australia of Australians
committing these offences if they evade prosecution overseas, and imposes a maximum
penalty of 17 years imprisonment. Of 11 prosecutions, 8 convictions have been recorded
under this legislation. While this instrument does have potential for use in trafficking
situations, its relevance in this context has not yet been tested.

Government Initiatives
The Government of Australia has entered into a Memorandum of Understanding with the
Governments of the Philippines and Fiji for Joint Action to Combat Child Sexual Abuse
and Other Serious Crimes. Australia has a cooperative relationship with the Thai
Embassy in Sydney whereby trafficked Thai persons are assisted in their return to
Thailand. The Department of Immigration Multicultural and Indigenous Affairs has a
task force dedicated to locating foreigners working in brothels in Australia. Women who
are found working illegally in brothels are deported. It is not clear whether the Task
Force actively seeks to identify women who have been trafficked and/or whether there is
a link between its work and the prosecution of traffickers and others involved in the
illegal exploitation of women. There is no specific assistance program for trafficked
persons in Australia, nor is there any program directly ensuring reintegration and safety
of trafficked persons upon their return to their country of origin. Trafficked women may
335
Sexual servitude is defined as the condition of a person “who provides sexual services and who, because
of the use of force or threats, is not free to cease providing sexual services or leave the place where those
services are performed.” (Australian Criminal Code s 270.4(1)).
336
Slavery is defined as the condition of a person “over whom any or all of the powers attaching
to the right of ownership are exercised, including where such a condition results from a debt or
contract made by the person.” Ibid, s 270(1).
337
Ibid, s 270.7(1).

71
qualify under the Women at Risk program, which is part of Australia’s Humanitarian
resettlement program. Once assessed, women may be able to apply for an Australian
Protection Visa, the duration of which is 3 years.

AusAID, the Australian Agency for International Development contributes directly and
indirectly to anti-trafficking initiatives, as well as training programs to raise awareness of
child trafficking and sexual exploitation in tourism in Cambodia, Indonesia, the
Philippines, Thailand and Vietnam.

NGO activities
There are a limited number of NGOs dealing specifically with trafficked persons in
Australia. Some refugee organizations also raise awareness of trafficking.

National Human Rights Commission

The Human Rights and Equal Opportunity Commission (HREOC) has not implemented
any anti-trafficking programs. HREOC has liaised with NGOs and commissioned
research on foreign sex workers in Australia.

4.2 Fiji

There is limited information on trafficking in Fiji, although it is suspected that Fiji has
become a destination for people trafficked from Asia, particularly from mainland China.
Incidences of forced labor of Chinese workers in garment factories have been reported,
and some garment workers are believed to be involved in prostitution338. Child sex
tourism is increasing, with predominantly Australian men traveling to Fiji for this
purpose. Of concern also is the incidence of Australian men “adopting” Fijian boys and
taking them to Australia to be used as what was described as sex slaves339.

Legislation
There is no legislation dealing specifically with trafficking in Fiji. Prostitution is legal.
The Penal Code prohibits procuring a woman or girl to become a prostitute, regardless if
the offence is committed in Fiji or elsewhere.340 Detaining a woman or girl against her
will in a brothel341, living on the earnings of prostitution342 and keeping or managing a
brothel343 is also prohibited by the Code. These crimes are punishable by a maximum of 2

338
Fiji’s Daily Post/Pacific News Online, 24 March 2000.
339
Report of the Special Rapporteur on the sale of children, child prostitution and child pornography:
Report on the mission to the Republic of Fiji on the Issue of commercial sexual exploitation of children,
1999. UN Doc. E/CN.4/2000/73/Add.3
340
Penal Code of Fiji, Article 157(1)
341
Ibid, Article 161(1)(b).
342
Ibid, Article 167.
343
Ibid, Article 170.

72
years imprisonment, with or without corporal punishment. The buying and selling of
minors under the age of sixteen is prohibited.344 The Fijian constitution provides for
freedom from servitude and forced labor.345

Government Initiatives
Fiji has mutual assistance agreements that allow residents of Australia and New Zealand
charged with serious offences in Fiji to be prosecuted in their country of residence. In
1998 the Governments of Fiji and Australia signed a Memorandum of Understanding for
Joint Action to Combat Child Sexual Abuse and Other Serious Crimes.

NGO activities
There are presently no NGO trafficking programs in Fiji; there are, however a number of
NGOs working with street children and victims of abuse.

National Human Rights Commission

The National Human Rights Commission of Fiji has not implemented any programs to
specifically address trafficking.

4.3 Indonesia

Indonesia is generally characterized as a country of source and transit for trafficked

persons. Primarily women and girls are reported to be trafficked from Indonesia to
Australia, Brunei, Malaysia, Singapore, South Korea and Europe into conditions of
domestic servitude and sexual exploitation. Indonesian women are also trafficked to
Taiwan and Japan under the guise of contract marriage to foreigners. A number of
women recruited by unregistered agents to work in the Middle East, especially Saudi
Arabia, have been exposed to exploitation and sexual abuse. Internal trafficking also
occurs, with Indonesian women and children trafficked from rural to urban areas, and to
regions such as Riau, which is close to Singapore and Malaysia. One NGO has claimed
that up to 400 000 Indonesian women and children are believed to be trafficked each
year346. The growth of child sex tourism in Indonesia has increased the demand for
trafficked children in areas such as Bali, Lombok and Java. The ILO estimates that 21000
children are working as prostitutes in Indonesia347

Indonesia is an area of transit for people smuggling from the Middle East to Australia.
Little research has been done on whether trafficking also takes place along these same
smuggling routes.

Legislation

344
Ibid, Articles 162 and 163 respectively.
345
Ibid, Article 25.
346
Women’s Coalition for Justice and Democracy, cited in US State Department’s Country Reports on
Human Rights Practices (2002), available at www.state.gov [hereafter: US Human Rights Report].
347
Ibid.

73
There is no specific anti-trafficking legislation in Indonesia, however trafficking of
females and immature males is prohibited by the Indonesian Criminal Code348, as is
facilitating an “obscene act” performed by a person as part of their job or habit349. The
penalties imposed on these offences are relatively low, with the maximum penalty for
trafficking being 6 years imprisonment. The protection of children is complicated by the
removal of childhood status when a girl is married in Indonesian law, and inadequate
laws to protect male children from sexual abuse. There are no laws in Indonesia
addressing the trafficking of women and children that takes place under the guise of labor
migration and marriage to foreigners, however migrants are required to take a 3 day pre-
departure course to alert them to their rights abroad.

Government initiatives
Plans to address trafficking more comprehensively are underway, with the Ministry of
Justice and Human Rights indicating its intention to draft a Plan of Action to Combat
Trafficking in Women and Children, as well as new laws on trafficking to implement the
Trafficking Protocol. The Ministry of Women’s Empowerment has contributed to The
Indonesian National Action Plan, which aims to eliminate all forms of violence against
women. The National Child Protection Bill, which is yet to be enacted, aims to protect
children from prostitution, sexual and labor exploitation.

No formal protection of foreign trafficked persons exists in Indonesia, but trafficked

persons may seek asylum or refugee status. The government does not have a formal
repatriation program to assist trafficked Indonesians.

NGO activities
The Indonesian government co-operates with NGOs such as the Indonesian Women’s
Association for Justice who conduct awareness programs to sensitize at-risk groups to the
dangers of trafficking. Other NGOs provide crisis centers and shelters to female migrant
workers. Protection of children and prevention of child labor, including trafficking is also
carried out by NGOs such as JARAK (NGO Network for Action Programs to Eliminate
Child Labor in Indonesia).

National Commission on Human Rights

The National Commission on Human Rights (Komnas HAM) has not instigated any
programs specifically addressing trafficking.

4.4 India

India has been widely identified as a country of destination, source and transit for
trafficked persons. Primarily, women and girls are reported to be trafficked into India
from Nepal, Bangladesh and Sri Lanka for a range of purposes including sexual
exploitation such as prostitution, sex tourism and pornography; domestic servitude;

348
Criminal Code of Indonesia, Article 297.
349
Ibid, Article 296.

74
bonded labour and indentured servitude. Trafficking of persons, including children, for
commercial sexual exploitation is often linked to networks involved in organizing illegal
adoption routes, illegal migration, and illegal marriage arrangement bureaus or ‘mail-
order brides’. However, the number of persons, including women and children who
become victims of trafficking - for labor, for commercial sexual exploitation or other
forms of abuse - are unknown mainly due to the dispersed and clandestine nature of the
phenomenon.

A survey sponsored by the Central Social Welfare Board in 1992 in six metropolitan
cities of India, viz., Bangalore, Bombay, Calcutta, Delhi, Hyderabad and Madras,
indicated that the population of women and child victims of commercial sexual
exploitation would be between 70,000 to 1,000,000. It also revealed that about 30 per
cent of them were below 18 years of age. Nearly 40 per cent of them were inducted when
they were less than 18 years of age350.

The Crime in India 1998 Report of the National Crime Records Bureau, Ministry of
Home Affairs, Government of India states that there was a 22.2 per cent increase in the
cases of selling of minor girls for prostitution for the year 1998 over 1997351.

Poverty and in particular social, cultural and gender disparities throughout India have
produced conditions in which the trafficking of women and girls has thrived. The rise in
HIV infection amongst sex workers in India has in turn, fuelled the demand for
increasingly younger girls by traffickers and consumers of sexual services.

Legislation
Trafficking is prohibited by the Indian Constitution. The right against exploitation is a
Fundamental Right guaranteed by the Constitution of India. Under Article 23, “Traffic in
human beings and beggars and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with
law”.

In accordance with the Constitution, the Government of India enacted the Suppression of
Immoral Traffic in Women and Girls Act, 1956, which criminalises trafficking. The Act
does not prohibit prostitution, but does prohibit prostitution related activities such as
keeping a brothel or allowing premises to be used as a brothel, living on the earnings of
prostitution and procuring, inducing or taking a woman or a girl for the purpose of
prostitution. The Act was amended in 1986 and renamed as the Immoral Traffic
(Prevention) Act (ITPA). The ITPA introduced several initiatives including setting-up of

350
Central Social Welfare Board (1992), Prostitution in Metropolitan Cities of India – A Study by
Central Social Welfare Board, New Delhi.

351
National Crime Records Bureau, Ministry of Home Affairs, Government of India (2000), Crime in India
1998, New Delhi.

75
Protective Homes to provide protection and services to victims and education and
vocational training to at-risk groups. The Act also provides for the appointment of
Special Police Officers assisted by women police to investigate trafficking offences, and
for the setting up of Special Courts.

The implementation of the ITPA is hampered by the existence of certain Sections, such
as, Sections 8352 and 20353, which are the most commonly invoked Sections for any
enforcement being done under the ITPA. These Sections result in prosecution of the
trafficked persons and result in further victimization of the victims/trafficked persons. It
has been found that instead of prosecuting the traffickers under Sections 3, 4, 5 and 6354,
most prosecutions take place under Section 8 of the ITPA. It has also been felt that the
ITPA should be amended to focus on the trafficker, to ensure speedy recording of
evidence, to enhance penalties against traffickers and deny easy bail to them.

The Indian Penal Code 1860 proscribes the kidnapping or abduction of a woman with
intent to marry her by force, forcing a woman into illicit intercourse, or compelling a
woman directly or indirectly to go from a place for this purpose355. If a girl is a minor,
inducing her by any means to go from place to place is punishable, as is importing a girl
under the age of 21 years into India for the purpose of inducing her into illicit sex.

Government Initiatives
The Government of India is currently seriously considering ratifying the Optional
Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, which was adopted by the UN General Assembly in
May 2000. It has started the process to ratify the ILO Convention (No. 182) on the Worst
Forms of Child Labour (sale and trafficking of children is considered a slavery-like
practice and is forbidden by Convention 182). The Government is also in the process of
ratifying the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the United Nations Convention against
Transnational Crime.

Within its borders, the Government of India has followed up the World Congress against
Commercial Sexual Exploitation of Children at Stockholm by –

• Drawing up a National Plan of Action (in 1998) and constituted a National Advisory
Committee to combat trafficking, rehabilitate victims of trafficking and commercial
sexual exploitation and improve legal and law enforcement systems to arrest
trafficking.

352
Section 8 of ITPA deals with seducing or soliciting for purpose of prostitution.
353
Section 20 of ITPA deals with removal of prostitute from any place.
354
Sections 3, 4, 5 and 6 deal with punishment for keeping a brothel; punishment for living on the
earnings of prostitution; procuring, inducing or taking woman or girl for the sake of prostitution
and detaining a person in premises where prostitution is carried on.
355
The Indian Penal Code, 1860, Section 366.

76
• Setting-up State Advisory Committees on Trafficking for the same purpose,
devolving authority and seeking to mobilize greater State resources in the fight
against trafficking.

• Reviewing the existing legal framework including the ITPA, IPC and enacting the
Juvenile Justice Act, 2000 and the Indian Information Technology Act, 2000 which
declares online pornography a punishable offence (Section 67).

• Enacting legislation to prohibit Devdasi and Jogin tradition of sexual exploitation.

• Initiating a new scheme called SWADHAR for women in difficult situations

applicable to victims of trafficking also.

The Department of Women and Child Development (DWCD), Ministry of Human

Resource Development, Government of India in collaboration with the National Human
Rights Commission is also engaged in preparing a manual for judicial officials, focussing
particularly on the judges at the district and taluka levels. The DWCD in collaboration
with UNICEF is simultaneously preparing a manual for police personnel. The
Government of India has also begun the process of creating a network of special police
officers to monitor trafficking. One of the most significant steps taken by the Government
is to designate the officers of the Central Bureau of Investigation of the rank of Inspector
and higher, as Trafficking Officers, giving them a special mandate to deal with cases of
organized trafficking with inter-state and inter-country ramifications.

NGO activities
There are a number of NGOs working in India to prevent trafficking and protect persons
who have been trafficked. Activities include training programs for local authorities to
sensitize, raise awareness and assist trafficked persons350. Some NGOs have established
support centers and shelters where women and girls are given medical assistance,
counseling and vocational training351. In 2001 ATSEC (Action Against Trafficking &
Sexual Exploitation of Children) signed a declaration to strengthen networks of regional
and Bangladeshi and Nepalese chapters of ATSEC and other NGOs as well as set up a
monitoring committee to review national and state government actions to prevent
trafficking352.

National Human Rights Commission

The Commission has established a Focal Point on the Human Rights of Women
Including Matters Relating to Trafficking, since February 2001.

350
For example, the Prerana pilot program.
351
For example, SANLAAP in Calcutta.
352
THE KOLKATA DECLARATION, National Consultation on Trafficking and Sexual Exploitation of
Children, India, July 2001.

77
The NHRC in collaboration with UNICEF, the Department of Women and Child
Development (DWCD), National Commission for Women (NCW) and Non-
governmental Organizations launched a two-month campaign on Child Prostitution and
Sexual Abuse of Children in New Delhi in September, 1998.

NHRC, in partnership with Prasar Bharati and UNICEF held four Workshops on Sexual
Violence Against Children and the Role of the Media, for radio and television producers.
On the basis of the deliberations that ensued during the course of these four Workshops
Guidelines for the Media in Addressing the Issue of Child Sexual Abuse were released by
the Commission in March, 2001.

Following from the above, a Guide Book for the Media on Reporting Cases of Sexual
Violence Against Children is currently under preparation.

An Information Kit has been prepared by the Focal Point on Trafficking in Women and
Children. This Information Kit was released to the public by the Chairperson of the
Commission on 9 October, 2001.

The Institute of Social Sciences has been commissioned to carry out an Action Research
on Trafficking in Women and Children in India jointly with the Commission and
UNIFEM. The main focus of the Action Research is to find out the trends, dimension,
factors and responses related to trafficking in women and children in India. It would also
focus on the routes of trafficking, transit points, the role of law enforcement agencies,
NGOs and others in detecting and curbing trafficking.

For carrying out the above Action Research 11 Workshops have been held this year in
different parts of the country in order to bring together the local NGOs, Police,
Government officials, Judicial officials and others so as to sensitize them about the
problem of trafficking and also to facilitate the research initiated by NHRC and
UNIFEM.

The above Action Research has created a network of Nodal Officers throughout the
country whereby one Nodal Officer has been appointed in each State / Union Territory to
check trafficking.

The National Law School of India University in Bangalore has been commissioned to
draft a Manual for the judiciary on Trafficking, jointly by the Department of Women and
Child Development (GOI) and NHRC.

The Commission is in the process of making a Manual for the District Magistrates, which
will have a special chapter on Trafficking Issues.

It has been proposed to develop a training module on trafficking issues for incorporation
in training programmes for administrators, police personnel and other functionaries.

78
In January, 2003, the Commission proposes to organize a Workshop on Sex Tourism in
collaboration with UNIFEM.

The Commission in collaboration with DWCD has commissioned PRAYAS (a project of

Tata Institute of Social Sciences, Mumbai) to undertake a Pilot Project to Combat the
Trafficking of Children, Adolescent Girls and Women for Commercial Sexual
Exploitation in Destination Areas.

The National Human Rights Commissions of Nepal and India have agreed in principle to
develop a pilot cross-border trafficking project in 2003. The Asia Pacific Forum of
National Human Rights Institutions will assist the Commissions in the coordination of
this project.

The Commission also monitors the implementation of the Bonded Labour System
(Abolition) Act, 1976.

4.5 4.5 Malaysia

Malaysia has been generally identified as a country of origin, destination and transit for
trafficked persons. Primarily women and girls are reported to be trafficked from Malaysia
to Canada, the United States, Australia and Taiwan, usually for the purpose of sexual
exploitation. Women are trafficked to work in the sex industry of Malaysia from
Indonesia, Thailand, the Philippines, China and increasingly from Russia, Ukraine,
Kazakhstan and Uzbekistan. During the year 2000, the Royal Malaysian Police arrested
607 foreign prostitutes353. It is unknown how many of these women were consensual
migrants working in non-coerced situations and how many had been trafficked into the
country. Malaysia is used as a transit country for the trafficking of women and girls from
the Middle East to Australia and from Thailand to the Philippines. Internal trafficking has
been detected, however the extent to which it occurs is unclear.

Legislation
Malaysia does not have specific trafficking legislation, however under the Penal Code,
importing, exporting, removing buying, selling or disposing of any person as a slave, or
accepting, receiving or detaining a person against their will is an offence, punishable by
up to seven years imprisonment and a fine354. A person who habitually imports, exports,
removes, buys, sells, traffics or deals in slaves is liable to up to twenty years
imprisonment and a fine355. The Penal Code proscribes the selling, letting, hiring or
otherwise disposing of any person under the age of 21 for the purpose of prostitution or
illicit intercourse and imposes punishment of up to 10 years imprisonment and a fine356.

353
US Human Rights Report, supra note 346.
354
Penal Code, Section 370.
355
Ibid, Section 371.
356
Ibid, Section 372.

79
Buying, hiring or obtaining a person under under 21 years is also subject to the same
punishment357. Any person who, by false pretence, false representation, or by fraudulent
or deceitful means, brings or assists in bringing any woman into Malaysia with the intent
that she be employed or used for the purpose of prostitution is punished by up to ten years
imprisonment and a fine, as is selling or buying a woman for the purpose of
prostitution358.

Part VIII of the Child Act 2001, which came into force in August 2002 specifically
proscribes trafficking in and abduction of children. Any person found guilty of either of
these offences is liable to a fine of up to 10 000 ringgit, or to imprisonment of up to 5
years, or both359.

Under the Child Act, it is an offence to harbor or have in one’s possession the custody or
control of a child with respect to whom the temporary or permanent possession, custody
or control has been transferred or conferred for valuable consideration by any other
person within or outside Malaysia. This offence is punishable by up to 5 years
imprisonment, or a fine of 10 000 ringgit, or both360.

Slavery is prohibited in the Malaysian constitution361. Foreign women who have been
trafficked to Malaysia are treated as immigration offenders and once detected are
detained and deported. A special permit may be granted if the woman is required to
testify against a trafficker.

Government initiatives
The government of Malaysia cooperates with ASEANPOL and INTERPOL to prevent
trafficking, and maintains a ‘watch-list’ of identified traffickers. Some law-enforcement
officials have undertaken anti-trafficking training programs. Repatriated Malays are
entitled to public assistance.

NGO activities
The Malaysian Bar Council assists victims of trafficking with legal advice and is also
engaged in an effort with NGOs to write draft ‘trafficking in persons’ legislation. The
Malaysian Chinese Association assists Malaysian victims of trafficking and their
families. They also promote public awareness of the dangers of trafficking to young
people using Chinese language materials.

National Human Rights Commission

357
Ibid, Section 373.
358
Ibid, Section 373A.
359
Child Act 2002, Section 48(1).
360
Ibid, Section 48(2).
361
Constitution of Malaysia, Article 6.

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The Human Rights Commission of Malaysia (Suhakam) does not currently have any
trafficking programs or initiatives.

4.6 Mongolia

Limited information is available on trafficking in Mongolia, however the issue is

attracting increasing attention. It is believed that some Mongolian women and girls
working in the sex trade in China, Japan and Eastern Europe have been trafficked. As in
most other countries, traffickers take advantage of women and girls seeking economic
opportunities abroad, and trafficking is thought to occur under the guise of recruitment
for legitimate work, such as offers of training or language courses and through contract
marriages overseas. More than 100 000 Mongolians live overseas, and a large number are
working illegally in South Korea and Western Europe. It is suspected that an increasing
number of Mongolian women may be trapped in situations where their labor or sexuality
is being exploited in these countries. Reportedly a number of Ethiopian women were
trafficked to Mongolia in 2000 to work as hostesses/entertainers362. Mongolia has been
used as a country of transit between China and Europe. The detection and prosecution of
trafficking-related offences is made difficult by some police who allegedly facilitate the
trafficking of women and children across the Mongolian border.

Legislation
There is no specific anti-trafficking legislation in Mongolia. Prostitution is illegal, as is
the coercion of minors into prostitution and deception involving trafficking into another
country363. The sale or purchase of a person for prostitution is illegal364. Forced and
bonded labor of children is illegal. In 2000 the International Labor Organization (ILO)
established a national office for the International Program on the Elimination of Child
Labor (IPEC).

Government Initiatives
Following preliminary research on trafficking in 2000 by the Centre for Human Rights
and Development, the Police Department has established a Task Force to Combat
Trafficking.

NGO activities
NGOs are relatively new to Mongolia, however in 2000, 1 700 NGOs were registered
with the Mongolian Ministry of Justice. Some NGOs work in cooperation with women’s
groups and the police to establish networks and raise awareness of women and trafficking
amongst police. A group of NGOs, led by the Centre for Human Rights and Development
is undertaking further research on trafficking.

National Human Rights Commission

362
IOM Trafficking in Migrants Quarterly Bulletin No. 23 April 2001.
363
Criminal Code of Malaysia, Article 111.
364
Ibid, Article 113.

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The National Human Rights Commission of Mongolia is involved in the research project
developed by the Centre for Human Rights and Development and other NGOs. It has not
yet undertaken any specific programs or initiatives on trafficking.

4.7 Nepal

Nepal is primarily a source country for trafficked persons. Predominantly women and
girls are trafficked from Nepal to Gulf States and Asia. Internal trafficking within Nepal
also occurs. The majority of trafficked women and girls are trafficked to India, usually to
work in the sex industry. Women and girls are often lured by traffickers with the promise
of work, only to be sold to a broker who in turn sells them to brothels in India. Estimates
of the number of women and children caught up in trafficking vary widely, but the
general statistic (of unknown origin) is between 100 000 and 200 000 Nepalese girls and
women working as prostitutes in India, and between 5 000 to 7 000 Nepalese girls under
the age of 18 being trafficked to India each year. Incidents of Nepalese boys being
trafficked to India for labor have also been reported.

In March 1999, the Office of the High Commissioner for Human Rights Trafficking
Program identified Nepal as a key country for intervention. The combination of an open
border to India, a high rate of poverty, as well as cultural and social disparities which
disadvantage women and girls in many spheres of public and private life has produced
conditions ripe for the trade in human beings. Unfortunately these conditions that make
women and girls vulnerable to trafficking are similar to the conditions that increase the
vulnerability of women and girls to HIV/AIDS. This is reflected in the relatively high
incidence of HIV infection amongst trafficked women and girls from Nepal365.

Legislation
The Government of Nepal has been relatively active in its attempt to combat trafficking
both in its implementation of anti-trafficking legislation, and in its cooperation with
intergovernmental and non-governmental organizations. The Human Trafficking Control
Act of 1986 prohibits the selling of a person as well as “taking a person abroad with the
intention of selling her/him”366. Traffickers are punished by up to 20 years imprisonment,
and accomplices to trafficking can be imprisoned for up to 10 years. An anti-trafficking
unit within the police force investigates and prosecutes traffickers. The fact that a
trafficker must take a person abroad with the intention of selling them suggests that the
act of trafficking itself cannot occur under the law until the trafficked person and their
perpetrators are outside Nepal. This does not address the issue of internal trafficking, nor
does it provide adequate protection to trafficked persons. The act defines trafficking as
“having a woman engage in prostitution by persuasion, enticement, deception, fraud or
pressure, or to encourage anyone to be engaged in such acts”367. There have been few

365
Some estimate that up to 65 per cent of Nepali girls returning from sex work in India are HIV positive.
See: US State Department’s Country Reports on Human Rights practices (2000), available at
www.state.gov .
366
Human Trafficking Control Act, Chapter 11, Article 1.
367
Ibid, Section 3.

82
prosecutions under the Human Trafficking Control Act, and enforcement of the
legislation is generally extremely weak. The Traffic in Human Beings (Offences and
Penalties) Bill 1999, which was proposed by the Ministry of Women, Children and Social
Welfare (MOWCSW) to reform the 1986 Act, has come under criticism for failing to
distinguish trafficking from a number of other offences, including prostitution,
pornography, sexual abuse and kidnap. This Bill, if passed, could effectively deny a
trafficked woman redress if she was also or consequently involved in prostitution. A
number of alternatives have been produced and are currently under discussion.

Government Initiatives
The Government of Nepal has facilitated and/or actively participated in a number of anti-
trafficking programs such as the UN interagency National Task Force Against
Trafficking, which broadly attempts to address gender discrimination in order to reduce
the incidence of trafficking. The National Plan of Action against Trafficking of children
and their Commercial Exploitation, on the initiative of the MOWCSW, aims to promote
attitudinal changes towards trafficking and gender issues through training and education
programs.

Plans to establish a National Rapporteur on Trafficking of Women and Children are well
advanced, and have eventuated as part of the Joint Initiative in the Millennium Against
Trafficking in Women and Girls, a project developed by the Government of Nepal and
various UN agencies. The National Rapporteur, when established, will work in
consultation with and through the National Human Rights Commission to strengthen
anti-trafficking initiatives through the promotion of the human rights of women and
children. The government of Nepal has set up ‘special courts’ to deal with trafficking
matters. At this stage little information is available as to the number and outcome of the
cases brought to these courts although their impact to date is clearly minimal. The South
Asia Court of Women on Trafficking and HIV/AIDS, a one-off initiative designed to
raise the profile of trafficking in the region is still under development.

NGO activities
The government, along with foreign donors, provides substantive funding to NGOs to
assist in the rehabilitation of trafficked persons and the provision of legal and medical
assistance. Education and job-training programs have been initiated by the Ministries of
Labor and Social Welfare in designated high-risk trafficking areas. NGOs such as Maiti
Nepal have established Transit Homes at border crossing points, to intercept girls being
trafficked and return them to their homes. A number of NGOs have undertaken
awareness-raising education programs as well as providing support services to trafficked
women and girls. As noted above, several UN agencies, including UNDP, UNICEF and
ILO are implementing ongoing trafficking projects in Nepal.

National Human Rights Commission

The NHRC has addressed trafficking in a number of gender and violence against women
programs. The appointment of the National Rapporteur on Trafficking (above) will
clearly provide great impetus for further, specific work on trafficking. The National

83
Human Rights Commissions of Nepal and India have agreed in principle to develop a
pilot cross-border trafficking project in 2003. The Asia Pacific Forum of National
Human Rights Institutions will assist the commissions in the coordination of this project.

4.8 New Zealand

New Zealand is generally identified as a destination country for trafficked persons.

Predominantly women are trafficked from Thailand to work in the sex industry and police
estimate that more than 500 Thai women are working in the sex industry of Auckland368.
Women from China, Malaysia and Singapore have also been detected working in New
Zealand brothels. Unfortunately, the failure of national authorities to distinguish between
migrant prostitution and trafficking lessens the value of such information. There are
reports that Thais have also been trafficked to work in the clothing industry, by being
deceived as to the conditions of their work, including access to food and accommodation.
It is unknown how many underage girls have been trafficked to work in New Zealand,
but a number have been detected. New Zealand has been used as a transit country by
traffickers moving Thai women to Japan, Australia and the United States.

Legislation
In June 2002 New Zealand passed new laws relating to trafficking, to implement its
obligations under the United Nations Convention against Transnational Organized Crime
and its supplementary Protocols. The Crimes Act 1961 has been amended to provide
extraterritorial jurisdiction for offences relating to trafficking of people, with a penalty of
up to 20 years imprisonment and a NZD $500 000 fine.

Prostitution is legal in New Zealand, but a range of prostitution-related activities are

prohibited including keeping a brothel369, living on the earnings of prostitution370 and
procuring a woman or girl to have sexual intercourse with a male who is not her
husband371. The Massage Parlors Act 1978 provides for the licensing of massage parlor
operators, but does not refer to the provision of sexual services at all. The trafficking of
slaves and sale of any person as a slave is prohibited under the Crimes Act372.
Amendments made in 1995 to the Crimes Act prohibit New Zealanders committing
sexual acts with children outside New Zealand, as well as assisting people traveling
overseas for the purpose of child sex tourism373.

368
See www.globalmarch.org/clns/index.html
369
Crimes Act 1961, section 147.
370
Ibid, section 148.
371
Ibid, section 148.
372
Ibid, section 98.
373
Ibid, ss 144A, 144B, 144C.

84
Trafficked persons are removed from New Zealand as soon as possible following
detection.

In 2000 the Employment Tribunal in Auckland found that a Thai man had lured 8
clothing industry workers to New Zealand by misleading them as to the conditions of
their employment. Recent amendments to the Immigration Act 1987 address employer
responsibility and employer exploitation of those who are not legally entitled to work.

Government initiatives
There are currently no government initiatives to address trafficking in New Zealand. In
January 2001 the government suspended its visa-free arrangement with Thailand.

NGO activities
In 2000 domestic NGOs and the Human Rights Commission assisted with the repatriation
of 6 Thai women who had been trafficked to New Zealand. NGOs such as End Child
Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes
(ECPAT International) raise awareness of sexual exploitation of children in New Zealand
and by New Zealanders abroad.

National Human Rights Commission

In 2000 the New Zealand Human Rights Commission launched its “Pink Sticker
Campaign” to publicize its repatriation program, which provides a ‘safe house’, travel
arrangements and follow-up support to Thai women trafficked to New Zealand.
In 2001 the Commission assisted a Thai woman to make a claim in the Disputes Tribunal
for the money which she had paid to traffickers in the belief that she would be found
work in a New Zealand restaurant, only to be forced to work as a prostitute.

4.9 Philippines

The Philippines is generally identified as a source, destination and transit country for
trafficked persons. Filipino women are reported to be trafficked to destinations in Asia,
particularly to Japan, Taiwan and the Republic of Korea as well as Australia and New
Zealand, Africa, the Middle East and the United States both as domestic servants and for
work in the sex industry. Chinese nationals are trafficked to the Philippines, and also
through the Philippines on the way to Pacific Island Nations and the United States.
Internal trafficking of adults and children from rural to urban areas also occurs, fuelled by
the growing sex tourism industry, including child sex tourism. Reduced employment
opportunities in rural areas contribute to the “push” factors which lead to women seeking
work in urban areas of the Philippines or in other countries. The economic stability of the
Philippines is largely dependent on the migrant labor of women who comprise 61% of
registered Filipino emigrants374. Work opportunities overseas are most often restricted to
low-paid positions as domestic servants or entertainment workers. “Mail-order bride”
schemes, aided by the expansion of the internet also serve to export Filipino women to
the US, Australia and Europe.

374
Commission on Filipinos Overseas, 2000, available at www.cfo.gov.ph

85
Legislation
There is currently no legislation dealing specifically with trafficking of adults in the
Philippines, however efforts to remedy this are underway. Enslavement is prohibited
under the Penal Code375 and subject to the maximum penalty if for the purpose of
“immoral traffic”. Prostitution is illegal in the Philippines376. Engaging in the business of
prostitution or enlisting the services of others for the purposes of prostitution, termed
“white slave trade” is also proscribed by the Penal Code377. Labor Laws prohibit and
punish the exploitation and trafficking of children378. The Migrant Workers and Overseas
Filipinos Act imposes a penalty of up to 12 years imprisonment for the illegal recruitment
of employees379.

Government Initiatives
In October 2001 Ministries and Government agencies of the Philippines agreed to jointly
implement the Philippines Strategic Action Plan for a National Coalition against
Trafficking in Human Beings. The Strategic Action Plan will involve drafting legislation
to address trafficking. The Strategic Action Plan provides for support for victims and the
protection of witnesses in cases relating to trafficking. The current Witness Protection
Program assists witnesses with employment placement and relocation, but is not widely
used by trafficked persons. Trafficked persons are generally not detained or deported and
temporary residence status is available to trafficked persons. Trafficked persons can
pursue civil action against traffickers.

In 2000, the Philippines Government entered into an agreement with the UN Centre for
International Crime Prevention, Office for Drug Control and Crime Prevention
(CICP/ODCCP) to implement a project, the Coalitions Against Trafficking in Human
Beings in the Philippines. The project focuses on the collection of information on
transnational criminal organizations involved in trafficking, strengthening crime
prevention strategies and providing assistance and protection to witnesses. The
Philippines have entered into a Memorandum of Understanding with the Government of
Australia in an effort to combat child sex tourism.

NGO activities
The Government of the Philippines cooperates with NGO programs that aim to prevent
trafficking by raising awareness and educating the public as to the plight of female
migration. NGOs such as the Centre for Overseas Workers and Kaibigan conduct pre-
employment information campaigns to alert female migrants of the risk of exploitation.

375
Penal Code of the Philippines, Article 272.
376
Ibid, Article 202.
377
Ibid, Article 341.
378
Rules and Regulations on the Trafficking of Children, Pursuant to section 32 of Republic Act
No. 7610, 1994.
379
The Migrant Workers and Overseas Filipinos Act, Section 7.

86
Programs like the Philippines-Australia Vulnerable Groups Facility assist trafficked
women with the provision of counseling and basic education.

National Human Rights Commission

The Commission on Human Rights of the Philippines has organized inter-agency
programs to assist the police and military in dealing with women and children, however it
has not implemented any programs dealing specifically with trafficking.

4.10 Republic of Korea

The Republic of Korea is generally identified as a country of destination, origin and

transit for trafficked persons. Women from the Philippines, South Asia, Central Asia and
Russia are trafficked to the Republic of Korea to work in conditions of sexual servitude.
Lured by promises of employment in the entertainment industry, trafficked women often
enter the Republic of Korea on ‘E-6’ entertainment or tourist visas, only to be forced to
work off ‘debts’ as prostitutes. The links between the sex industry and foreign military
presence is also relevant: it is estimated that approximately 18 000 prostitutes are serving
more than 40 United States military bases throughout the country380.Women from the
Republic of Korea are trafficked to countries including Canada, the United States, Hong
Kong and Japan to work in the sex trade or as domestic servants. The Republic of Korea
is used as a transit country for trafficking Chinese women to the United States. Although
limited information is available, the trafficking of girls under the age of 18 into and out of
the Republic of Korea is believed to occur.

Legislation
There are no specific anti-trafficking laws in the Republic of Korea, however the
Criminal Code does prohibit trafficking and imposes a penalty of up to 3 years
imprisonment381. Buying or selling a female for the purpose of prostitution is punishable
by up to 1 year imprisonment382. Inducing a female minor to engage in prostitution is
punished by a fine or up to 3 years imprisonment383. A number of convictions under these
laws have been recorded. Suspected traffickers have usually been arrested on charges of
travel document fraud rather than trafficking. Forced labor is prohibited by the
Constitution384.

Laws that aim to prevent the exploitation of children include The Youth Protection Law,
which proscribes minors under the age of 19 being employed in entertainment
establishments; the Labor Standards Law which prohibits the employment of any person
under 18 years of age in work that is “detrimental to morality or health” and the Child
Protection against Sexual Offences Law which punishes the sale of the sexual services of
380
CATW Asia Pacific, Trafficking in women and prostitution in the Asia Pacific (1996).
381
Criminal Code, Article 289.
382
Ibid, Article 288(1).
383
Ibid, Article 242.
384
Ibid, Article 12.

87
persons under 19 years of age with up to 20 years imprisonment. Foreign trafficked
women are considered illegal immigrants and are deported from the Republic of Korea
once detected.

Government initiatives
In 2001 the Supreme Prosecutor’s Office co-operated with the police and local
governments to establish joint investigation centers to address trafficking and related
issues of prostitution and illegal immigration. The Ministry of Gender Equality has
published booklets to raise awareness on sex trafficking and to publicize counseling
centers and protection facilities for trafficked persons. Legal aid is available to trafficked
persons.

Various laws provide for the provision of facilities such as temporary shelters,
counseling, medical treatment and vocational training for trafficked persons. The
government has enacted the NGO Assistance Law that provides financial assistance to
NGOs that assist trafficking persons.

NGO activities
NGOs have, in cooperation with the Government, worked to raise awareness of
trafficking. A number of NGOs, such as United Voice (Han-So-Ri) for the Eradication of
Prostitution in Korea and Magdalena House provide protection to prostitutes.

The National Human Rights Commission

The National Human Rights Commission has not implemented any programs to
specifically address trafficking.

4.11 Sri Lanka

Sri Lanka is generally identified as a country of origin and destination for trafficked
persons. Sri Lankan women are reported to be trafficked to other Asian countries as well
as to the Middle East for purposes of sexual exploitation and domestic servitude. Sri
Lankan boys are reported to be trafficked to Gulf States to be camel jockeys. The
organized sale of Sri Lankan babies for foreign adoption has also been detected. Women
from China, Thailand and Eastern Europe have been trafficked into Sri Lanka for sexual
exploitation. Internal trafficking from rural to urban areas also occurs, and one NGO
estimates (without any corroborating evidence) that up to 12 000 children have been
trafficked within Sri Lanka by organized crime groups385. Foreigners, mainly from
Europe, and Sri Lankans travel to coastal child-sex tourist destinations where, according
to the ILO, up to 30 000 Sri Lankan children, mostly boys, are exploited386.

Legislation

385
Coalition Against Trafficking in Women (CATW) Fact Book citing London Telegraph, 26 October
1997.
386
ILO-IPEC, Country Paper: Sri Lanka, September 1999.

88
The Sri Lankan Penal Code specifically prohibits trafficking. Under the Code, buying or
selling people of any age or sex, promoting or inducing adoption, assisting a child to
travel to a foreign country without the consent of their parent or guardian as well as the
procurement of women and children from hospitals and shelters constitute trafficking and
may be punished by between 2 and 20 years imprisonment387. A child is a person under
18 years of age388.The procuring of a person with the intent that he or she becomes a
prostitute inside or outside of Sri Lanka is prohibited, regardless of the age, sex and
consent of the person procured389. The 1998 amendments to the Penal Code criminalize
hiring, employing, persuading, inducing or coercing a child to procure them to have
sexual intercourse or be subject to any sexual abuse390.

Government initiatives
The Government of Sri Lanka has established the National Women and Children’s Desk
of the Sri Lanka Police Department to deal with trafficking matters. The government also
instituted the National Child Protection Authority which provides medical assistance and
counseling to trafficked Sri Lankan children and child soldiers. Welfare officers have
been assigned to Middle Eastern countries to assist Sri Lankans who have been trafficked
there.

NGO activities
The government co-operates with NGOs, some of whom provide non-formal education to
trafficked persons and to at-risk groups. The International Program on the Elimination of
Child Labor (ILO-IPEC) has undertaken awareness-raising programs on trafficking and
child abuse; and NGOs such as Protecting Environment and Children Everywhere
(PEACE) educate children as to the risks of trafficking and child abuse as well as monitor
law enforcement in child abuse matters.

National Human Rights Commission

The Human Rights Commission of Sri Lanka does not currently have any specific
trafficking programs.

4.12 Thailand

Thailand is generally identified as a country of destination, origin and transit for

trafficked persons. Mostly women and children are reported to be trafficked to Thailand
from Burma, Cambodia, China and Laos and forced to work in sexually and
economically exploitative conditions. There have been consistent reports of children
being trafficked to Thailand to work in begging gangs and sweatshops. Internal
trafficking occurs, with women and girls from poor rural areas in the North and Northeast

387
Penal Code of Sri Lanka, Article 360C.
388
Ibid, Article 360C(2).
389
Ibid, Article 360A.
390
Ibid, Article 360B.

89
of Thailand trafficked to Bangkok and other urban areas. Sex tourism, including child sex
tourism attracts men from Australia, New Zealand, Asia and Europe to Thailand and fuels
the demand for women and increasingly young girls and boys to work as prostitutes in
tourist areas. It is unknown how many women are working in the sex tourism industry on
a voluntary basis and how many have been coerced. Thai women are trafficked to Japan,
Taiwan, Malaysia, Singapore, Australia, New Zealand, the United States, Canada, South
Africa, Europe and Saudi Arabia for sexual and other forms of exploitation. The lack of
citizenship accorded to some hill-tribe women and children has been identified as a factor
increasing their susceptibility to trafficking. Thai men and women have been trafficked to
some of these countries to work in garment sweatshops. Thailand is widely identified as a
transit country for people trafficked from Russia, Eastern Europe, South and Southeast
Asia to Cambodia, Hong Kong, Japan, Malaysia and Taiwan.

Legislation
Thailand does have specific anti-trafficking laws. The Measures of Prevention and
Suppression of the Trafficking in Women and Children Act 1997 prohibits the selling,
buying, luring, sending, receiving, detaining and procuring of women and children to
perform sexual acts with or without the consent of the woman or child391. The maximum
penalty is 5 years imprisonment and a fine392. The Act authorizes an official to issue a
summons to any person to give a statement or evidence as well as to examine the body of
a woman or child if the official has reason to believe that they are the victim of a
trafficking offence393. Officials also have the authority to detain women or children
thought to have been trafficked for up to 10 days. Detention cannot be in prison394. Even
if a suspected offender has not been arrested, a public prosecutor may demand that a
trafficked woman or child they suspect has been trafficked file a petition and specify all
the acts allegedly committed395.

The Prevention and Suppression of Prostitution Act 1996 prohibits prostitution,

irrespective of the sex of the client or prostitute and punishes the client with a fine396.
Parents or guardians who collaborate in the prostitution of a child under 18 years are
subjected to a fine and the revocation of guardianship397. The Act proscribes forced
prostitution and imposes 10 to 20 years imprisonment and a fine as punishment398. The
Act also provides for the protection and vocational development of prostitutes under the

391
Measures of Prevention and Suppression of the Trafficking in Women and Children Act,
Section 5.
392
Ibid, Section 7.
393
Ibid, Section 9.
394
Ibid, Section 10.
395
Ibid, Section 12.
396
Prevention and Suppression of Prostitution Act, Section 5.
397
Ibid, Sections 10, 13.
398
Ibid, Section 12.

90
age of 18 for up to 2 years, as well as the establishment of a Committee for Protection
and Vocational Development at the national level and in each province.

The Penal Code provides for 3 to 15 years imprisonment for a person who uses a
prostitute who is between 15 and 18 years of age, and the term is increased if the child is
under the age of 15399. The use of deceptive means or coercion to procure minors is an
aggravating circumstance and may be subject to up to life imprisonment400.

The number of trafficking offences actually investigated and prosecuted is relatively low.
It is thought that some police may actually facilitate trafficking, which has reduced the
effectiveness of the relevant laws. The Revised Child-Friendly Procedure in Court Act
2000 allows for children to give video taped evidence in private surroundings in the
presence of a psychologist, psychiatrist or social worker.

No special status is afforded to foreign trafficked women in Thailand under the

Immigration Act 1979, and they are repatriated to their country of origin as soon as
possible. There has been an attempt to amend the Measures for Prevention and
Suppression of Trafficking in Women and Children Act to classify trafficked women and
children as ‘victims of trafficking’. These women and children would not be charged with
the status offence of ‘illegal entry’ under the Immigration Act. Instead, they would have
access to redress and remedy programs and monitored repatriation.

Government initiatives
The Thai government has instigated the National Plan of Action to Combat Human
Trafficking (1997-2006). The plan focuses on prevention, suppression, assistance and
protection, rehabilitation and reintegration and the establishment of structure and
efficiency in policy implementation. The National Commission on Women’s Affairs has
developed a program aimed to prevent trafficking through education and awareness-
raising of girls in at-risk groups, as well as facilitating rehabilitation and education among
women who have worked as prostitutes. The Memorandum of Understanding among
Government Agencies Concerned in Handling the Cases of Trafficking in Women and
Children who are Victimized, signed in 1999, by Thai government agencies and NGOs
recognizes trafficked women and children as victims, and seeks to ensure that their
treatment after detection is consistent with this status. In accordance with this agreement,
the Public Welfare Department has provided shelters and primary remedy programs to
the rescued victims and has facilitated their return to their home country in collaboration
with its counterparts in neighboring countries.

NGO activities
Thailand has a relatively well-developed NGO network with a number of agencies
focusing on preventing trafficking and assisting those who have been trafficked. NGOs
such as Centre for the Protection of Children’s Rights (CPCR) and Fight Against Child

399
Penal Code of Thailand, Section 282.
400
Ibid, Section 283.

91
Exploitation (FACE) among others are involved in the rescue, return and reintegration of
trafficked children. Bangkok is the regional base for a number of international
organizations including UN agencies working on trafficking issues and serves as the
Headquarters of a comprehensive UN Inter-Agency Project on trafficking covering
countries of the Mekong Sub-region.

National Human Rights Commission

The National Human Rights Commission of Thailand has not as yet initiated any
programs addressing trafficking.

PART FIVE: CONCLUSIONS AND POSSIBLE RECOMMENDATIONS

5.1 Conclusions on the international legal issues

The international legal position on trafficking is far from settled and developments in this
area have been both uneven and inconsistent. The complexity of the phenomenon and its
inherent association with controversial issues such as migration and prostitution has
clearly contributed to this situation. It is also relevant to note that the majority of
international instruments which are generally invoked in support of an international
prohibition on trafficking reflect a protective, paternalist view of social relations which
many would argue to be contrary to the goal of securing for women their basic human
rights. Even the core international and regional human rights treaties, with their standard
provisions on slavery and forced labor, must be applied to contemporary trafficking
practices through constructive interpretation rather than by way of literal reading of their
texts.

Other difficulties inherent in developing and applying a structured legal analysis to

trafficking include the fact that traffickers and their accomplices are, for the most part,
non-State actors. In essence, trafficking is a criminal phenomenon with direct and severe
consequences for individual rights and freedoms. While international law has come some
way towards establishing connections between the acts of private persons or groups and
the responsibility of States, as well as concepts such as individual criminal responsibility,
these areas of law are still relatively underdeveloped and poorly understood.

Despite these obstacles, it is evident that existing international law, particularly

international human rights law, provides an important base from which to secure dignity
and justice for trafficked persons. As a starting point, it is essential to acknowledge that
trafficked persons are entitled to the same basic rights as every other individual.
Governments cannot legally deny anyone their basic human rights because of the fact
they have been trafficked, because of their status as non-nationals, or on any other
prohibited ground. Universal respect for basic human rights is the legally accepted
“minimum standard” and one from which no deviation is acceptable.
Of course an international minimum standard will never be enough to sufficiently protect
inherently vulnerable individuals such as trafficked persons. Recent initiatives and events
have also contributed enormously to a growing understanding of the ways in which
international law can help to prevent trafficking, prosecute traffickers and protect the

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rights of trafficked persons. Key developments in this regard include the work of the
International Criminal Tribunal for the Former Yugoslavia, the creation of the
International Criminal Court and the adoption of new legal instruments at both the
international and regional levels. Whilst not strictly a legal milestone, the release, by the
UN High Commissioner for Human Rights, of a comprehensive set of Recommended
Principles on Human Rights and Human Trafficking also represents a significant step
forward in terms of clarifying and consolidating applicable norms.

Law is, first and foremost, a tool for change. International human rights law provides one
of the most important and powerful tools for effecting positive change in the lives of
individuals and communities throughout the world, particularly the marginalised and the
powerless. For trafficked persons and their advocates, the task now is to ensure that
existing legal standards are enforced and that that the trafficked person and her rights are
placed at the centre of all future legal and policy initiatives in this area.

5.2 Possible Recommendations for further action by national human rights

institutions to prevent trafficking and protect the rights of trafficked persons.

The former High Commissioner for Human Rights, Mary Robinson, identified National
Commissions as “an under-utilized resource in the fight against trafficking”401. The
remainder of this section highlights some of the ways in which national commissions,
particularly member institutions of the APF, could work to prevent trafficking and to
protect the rights of trafficked persons. These proposals do not set out to be either
prescriptive or exhaustive. Their purpose is to identify possible strategies with reference
to the key functions with which national commissions are entrusted: educating about
human rights; advising governments and receiving and acting on complaints of human
rights violations. A final section looks at the ways in which national institutions can
work together on this issue. Two preliminary remarks are in order. First, it is important to
recall that trafficking and related practices are often invisible. Management and staff of
national institutions must be aware of the problem and be proactive in their approach.
Second, trafficking is essentially a gendered issue in that it reflects gender-based
imbalances between men and women and disproportionately affects women and girls.
National Institutions will not be able to deal with this problem effectively unless they
have integrated a gender perspective into their own programs and methods of work402.

5.2.1 Educating about human rights and human trafficking

401
UN High Commissioner for Human Rights, address to the International Coordinating
Committee of National Institutions for the Promotion and Protection of Human Rights, Geneva,
1999.
402
See Asia Pacific Forum of National Human Rights Institutions, “The role of national institutions in
advancing the human rights of women”, presented at Asia Pacific Forum Fourth Annual Meeting, Manila,
the Philippines, 6-8 September 1999. See also Commonwealth Human Rights Initiative, “Balancing the
scales: Gender composition of Commonwealth National Human Rights Institutions” (2001).

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All national commissions in the Asia Pacific region are mandated to undertake human
rights education and training. Integration of trafficking issues into training and
dissemination programs should be a priority in significant source and destination
countries. Key target groups for sensitization and training in the human rights aspects of
trafficking (both causes and responses) include public officials (police, prosecutors, the
judiciary, immigration officials, consulate staff) as well as civil society groups including
the media, educators, NGOs and community leaders. Consideration could usefully be
given to undertaking training-of-trainers programs in order to empower local community
groups to conduct sensitization activities - as it is these groups who are often in closest
contact with victims and potential victims of trafficking.

A contextual approach should be taken to training and sensitization activities in order to

properly incorporate and reflect the human rights and gender aspects of trafficking. This
means that trafficking should not be considered as a separate or distinct “issue” but rather
understood within the broader context of human rights, particularly the rights of women
and children. The connection between trafficking and violations of human rights is too
clear to be ignored. The capacity for different groups to further aggravate the violations
already suffered by trafficked persons should be highlighted and explored through the
training process403.

As noted in Part Four of this paper, many countries with an APF-member institution have
adopted legislation aimed to prevent trafficking, prosecute traffickers and protect the
rights of trafficked persons. National institutions have an important role to play in
educating relevant officials and the general community about these laws as well as
providing guidance on their effective implementation.

5.2.2 Monitoring and advising governments

Governments have a critical role to play in the fight against trafficking. National
Institutions can use their position, resources and authority to provide governments with
inputs, which will enable them to make wise legislative and policy choices. They can also
be influential in shaping and directing a government’s overall approach to the trafficking
issue, in ensuring, for example, that trafficking is perceived and responded to as a human
rights problem and not just as an issue of migration, of public order or of transnational
organized crime.

Priority should be given to reviewing relevant domestic laws with a view to identifying
gaps and weaknesses, in particular, with reference to international human rights
principles and standards. National institutions could use the High Commissioner’s
403
Law enforcement practices, for example, can hinder rather than support trafficked persons in
their attempts to escape an exploitative situation or seek redress for damage. The media can
likewise be a source for harm rather than good. The portrayal of trafficked persons in the media is
typically sensationalized and designed to titillate. It objectifies victims and violates their right to
dignity and privacy. Rather than promoting community understanding of the trafficking
phenomenon, the media in many countries has contributed towards simplifying the issue and
preventing debate about the structural and political factors which sustain trafficking and related
exploitation. National institutions have a role to play in showing these and other groups a
different way of doing their job.

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Recommended Principles on Human Rights and Human Trafficking404 as a guide and
checklist in this process. In addition to specific anti-trafficking legislation, attention
should be paid to laws relating to immigration, emigration and prostitution. Other
possible areas of attention for review would include the issue of extraterritorial legislation
(to facilitate the prosecution of traffickers); birth registration and citizenship requirements
(immediate registration and citizenship at birth in order to ensure that victims,
particularly children, may exercise their right to return to their home countries); and laws
relating to marriage, inheritance and labor conditions. It is, of course, important for
national institutions to also go beyond the law by including consideration of related
policies and practices.

Not all measures designed to prevent trafficking are legal, fair or successful. Anti-
trafficking interventions can sometimes result in violations of basic human rights
including the right to freedom of movement and the prohibition of discrimination on the
basis of race, nationality and sex. As noted above, the High Commissioner’s Principles
and Guidelines on Human Rights and Human Trafficking foresee a central role for
National Institutions in monitoring the human rights impact of anti-trafficking laws,
policies, programs and interventions as well as in the development, adoption,
implementation and review of anti-trafficking legislation, policies and programs405.
National institutions should also monitor and warn against “knee-jerk” reactions from
governments such as a denial of due process rights and draconian penalties for traffickers.
A genuine rights-based approach demands that the human rights of all persons, including
those suspected of trafficking, are respected and upheld.

General policy advice to government on the problem of trafficking can also be extremely
useful. National Commissions could, for example, propose that governments include the
issue of trafficking in national development and poverty alleviation programs as well as
in National Plans of Action for Human Rights406. In countries of origin they could
promote specific preventive initiatives aimed at increased access of vulnerable women
and girls to education and genuine alternative job opportunities. In destination countries
they could propose that industries which could have a connection to trafficking, such as
leisure, tourism, media and computer communication industries be encouraged to develop
codes of conduct - with clauses specifying monitoring and reporting mechanisms, to
prevent direct or indirect involvement with trafficking. National institutions could also
encourage governments in destination countries to investigate the “demand” side of

404
Principles and Guidelines, supra note 16.
405
Ibid, at Guideline 1.
406
Recommendations relating to national human rights plans were made at the ‘Vienna
Declaration and Program of Action’ supra note 72. Paragraph 71 of Part II provided that:

“The World Conference on Human Rights recommends that each State consider the desirability
of drawing up a national action plan identifying steps whereby that State would improve
the promotion and protection of human rights”..

95
trafficking. What are the factors that create and sustain demand for cheap exploitative sex
and unregulated, exploitative labor?

The SAARC Convention is an important inter-governmental instrument dealing

specifically with trafficking in the region. As such, it is uniquely positioned to frame and
promote the practical implementation of any relevant recommendations made by the
Advisory Council of Jurists.

In order to maximize the effectiveness and usefulness of the Convention, and to instigate
the full realization of the Advisory Council of Jurists’ recommendations, the Council may
wish to request that the Asia Pacific Forum Secretariat and any of its interested member
institutions undertake an examination and review of the SAARC Convention, in light of
the recommendations made by the Council at its meeting, and provide this review to
SAARC for its consideration.

5.2.3 Investigating human rights issues connected to trafficking

All APF member institutions are mandated to receive and act upon complaints of human
rights violations. Most are also empowered to undertake enquiries, on their own initiative,
into particular human rights situations or issues. Both of these powers can be extremely
important in highlighting the problem of trafficking and in providing redress to victims.

In relation to individual complaints, National Institutions must remain aware of the fact
that the type of complaint received will usually reflect public perception of the
institution’s functions and principle areas of concern. A Commission which has never
issued a public statement on trafficking; never included trafficking related issues in its
training or dissemination programs; and never provided relevant policy advice to
government should not be surprised if it receives no complaints on this issue. Nor should
it assume on this basis alone that the problem does not exist. It is up to individual
Commissions to use their other functions as a means of ensuring that the complaints
procedure does in fact provide a reflection of human rights concerns within the
community. Other considerations to be kept in mind include the fact that most trafficked
persons are illegal or irregular immigrants. National Commissions should make special
efforts to reach out to the immigrant community as normal communication channels are
likely to be ineffective. The irregular status of most trafficked persons will also mean that
they are wary of “official” channels. National Commissions should ensure confidentiality
in the complaint procedure in order to encourage trafficked persons to come forward.

General Enquiries have proved to be a particularly useful way of gathering information

on difficult or sensitive issues. National Commissions in major sending or receiving
countries could consider undertaking such an enquiry into trafficking. The results from a
study of this kind would provide valuable information on critical but often overlooked
human rights issues.

5.2.4 Working together

96
While trafficking does occur between continents it remains essentially a regional issue.
There is a consequential need to focus on regional and sub-regional approaches which
aim, inter alia, to coordinate legislation and to improve cross-border cooperation -
particularly as this relates to law enforcement and victim protection.

National Institutions within the Asia Pacific region are uniquely placed to contribute to
regional and cross-border efforts to eliminate trafficking. The critical link between
trafficking and human rights makes national institutions especially relevant players in
relation to this issue. In some instances, national institutions cooperating together may
well be providing important leadership to other key players including police, judicial and
immigration authorities which often find it difficult to move from expressions of intent to
action. Cooperation between national institutions could be both bilateral and multilateral
and could range from information exchange to joint projects aimed at preventing
trafficking (by addressing both demand and source factors) and protecting the rights of
persons who have been trafficked.

The Asia Pacific Forum of National Human Rights Institutions, as the body representing
and working for the national institutions of the region, also has an important role to play.
In addition to promoting and coordinating cooperation between national institutions on
this issue, the APF could decide to contribute, substantively, to the development of
international law and policy as it relates to trafficking. The decision to pass this issue to
its judicial advisory body is an important step forward in this respect. The follow-up
which this initiative receives will be critical to determining its eventual influence both
within and beyond the region. Finally, on this point, the APF could consider, as a body,
taking up the suggestion of the High Commissioner for Human Rights and endorsing or
adopting her Recommended Principles and Guidelines as a framework and reference
point for its work and that of its member institutions in this area.

****

97
ANNEX 1: Terms of Reference for Consideration of the Issue of Trafficking by the
Advisory Council of Jurists of the Asia Pacific Forum of National Human Rights
Institutions

98
 TERMS OF REFERENCE FOR CONSIDERATION OF THE TRAFFICKING
ISSUE BY THE ADVISORY COUNCIL OF JURISTS OF THE ASIA PACIFIC
FORUM OF NATIONAL HUMAN RIGHTS INSTITUTIONS

The Asia Pacific Forum of National Human Rights Institutions refers to the Advisory
Council of Jurists for advice and recommendation regarding the nature and scope of
States’ obligation under international law, including international human rights law, to
prevent trafficking, investigate and prosecute traffickers, and provide protection,
assistance and redress to trafficked persons.

In particular, the Council is requested to consider:

(i) The nature and scope of State responsibility for trafficking and
related conduct taking into account that much trafficking activity is
undertaken by non-State entities;
(ii) Whether international law requires States to criminalize,
investigate and punish trafficking and related conduct.
(iii) Whether international law prevents the detention or prosecution of
trafficked persons for their unwilling or coerced involvement in
unlawful activities;
(iv) Whether international law requires States to provide legal and
social assistance to trafficked persons;
(v) Whether international law prevents the compulsory testing of
trafficked persons for HIV/AIDS and other diseases;
(vi) Whether international law prevents States from summarily
deporting or returning a trafficked person when such deportation or
return poses a serious and verifiable risk to the safety of the
trafficked person and/or that person’s family;
(vii) The nature and extent of States’ obligation to take active and
timely steps to identify trafficked persons from among vulnerable
groups such as irregular migrants;
(viii) The nature of special protections which should be extended to
trafficked children in accordance with international law;
(ix) Whether trafficking should constitute an extraditable offence and
thereby be included as such in bilateral and multilateral extradition
treaties;
(x) The extent to which international law permits the development and
implementation of extraterritorial measures aimed at preventing
trafficking and apprehending traffickers;
(xi) The nature of States’ obligations, under international law, to
provide trafficked persons with access to effective and appropriate
remedies.
(xii) The extent to which the SAARC Convention on Preventing and
Combating Trafficking in Women and Children for Prostitution (as
the only directly relevant regional instrument) provides an
adequate framework for responding to the problem of trafficking

99
The Council may wish to comment upon:

(i) the socio-economic, political and legal environments in Forum Member

States;
(ii) The religious and cultural traditions in Forum Member States;
(iii) The roles to be served by a criminal justice system; and
(iv) The international legal obligations of each Member State, including duties of
cooperation between Member States.

Relevant international law would include but not limited to:

• Universal Declaration of Human Rights;

• International Covenant on Civil and Political Rights;
• International Covenant on Economic, Social and Cultural Rights;
• Convention on the Rights of the Child and its relevant Optional Protocol;
• Convention Concerning the Prohibition and Immediate Action for the Elimination
of the Worst Forums of Child Labor (ILO No. 182)
• Convention on the Elimination of All Forms of Discrimination against Women;
• United Nations Protocol to Suppress, Prevent and Punish Trafficking in Persons
especially Women and Children supplementing the Convention against
Transnational Organized Crime;
• SAARC Convention on Combating Trafficking in Women and Children for
Prostitution.

100
ANNEX 2: Terms of Reference of the Advisory Council of Jurists of the Asia Pacific
Forum of National Human Rights Institutions

101
 TERMS OF REFERENCE OF THE
ADVISORY COUNCIL OF JURISTS OF THE ASIA-PACIFIC FORUM OF
NATIONAL HUMAN RIGHTS INSTITUTIONS

1. ESTABLISHMENT OF THE ADVISORY COUNCIL OF JURISTS OF

THE ASIA-PACIFIC FORUM

The Asia-Pacific Forum of National Human Rights Institutions establishes the

Advisory Council of Jurists (the Council) as a specialist advisory body to provide,
on request, jurisprudential guidance to the Forum and its member institutions.

2. JURISDICTION

The Council shall provide comment, opinion and advice on the interpretation and
application of relevant international human rights standards, upon request, having
regard to settled principles of international law and the treaty obligations of the
concerned States.

3. REQUESTS TO THE COUNCIL

(i) A request to the Council may be made only by a unanimous decision of

the Forum or by a national institution that is a member of the Forum. The
Forum may request an opinion from the Council on a general issue of
human rights law of broad regional concern. An institution may request
an opinion from the Council exclusively on an issue within the
institution’s competence or having relevance to the institution’s own
country.

(ii) The jurisdictional competence of the Council is limited to consideration of

specific situations or specific human rights questions. Where an issue is
international in character (for example, trafficking in persons) the Council
is only authorized to comment on a situation in a particular country with
the agreement of the national institution of the country concerned. Apart
from citing precedents, the Council is not authorized to comment on
situations outside the country of the requesting institutions.

(iii) The Council has no jurisdiction to receive requests from individuals,

organizations, domestic judiciaries or governments. The Council may
propose issues on which an opinion might be requested but it has no
authority to offer an opinion without a unanimous request from the Forum
or a national institution which is a member of the Forum.

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4. CONFIDENTIALITY AND ADVISORY OPINIONS

(i) All matters referred to the Council shall be administered and considered
on a confidential basis, unless the requesting institution wishes it to be
treated otherwise. Where a matter is referred to the Council by a decision
of the Forum, the Forum may decide that the matter be treated in public,
provided that the Council does not object.

(ii) Opinions or views expressed by the Council to the referring institution or

the Forum are only advisory and are not, in any sense, legally binding.
The Council’s views may contain recommendations or suggestions as to
how they might be implemented but the Council cannot instruct the Forum
or Member institutions on their activities or require them to take any
particular actions.

5. STRUCTURE, COMPOSITION AND PROCEDURE

(i) The Council shall be comprised of eminent jurists who have held high
judicial office or senior academic or human rights appointments.

(ii) Each member institution of the Forum may nominate one national of its
own country to serve on the Council.

(iii) Each member jurist serves a five-year term, which may be renewed once.
Members serve in their personal capacity independent of their
governments. Members are not able to delegate their functions to any
other person.

(iv) The Council shall appoint one of its members as the President of the
Council, it being desirable to rotate the Presidency to the extent possible.
The President of the Council is responsible for coordinating requests for
advice, determining whether an issue is within the Council’s jurisdiction
and for arranging meetings of the Council. The President may refer a
request for an opinion to the full Council or to a board of at least three
members of the Council, as appropriate.

(v) The majority of work undertaken by the Council shall be conducted by

correspondence. The Council shall meet as required by its workload and
its meetings should coincide, to the extent possible, with the annual
meetings of the Asia-Pacific Forum.

(vi) The Secretariat of the Forum serves as the secretariat to the Council.

(vii) The Secretariat of the Forum meets the costs of the Council’s deliberations
and reasonable expenses. It is not envisaged that Council members shall
receive financial remuneration for their services.

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 (viii) In all other respects the Council determines its own rules of procedure.

6. REVIEW

The composition of the Council will be reviewed following the first two years of
its operation to determine whether the number of jurists is appropriate to the
Council’s workload.

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ANNEX 3: Concluding Statement of the Asia Pacific Forum of National Human
Rights Institutions Sixth Annual Meeting

105
 SIXTH ANNUAL MEETING OF THE ASIA PACIFIC FORUM OF NATIONAL
HUMAN RIGHTS INSTITUTIONS

24th – 27th September 2001, Colombo, Sri Lanka

CONCLUDING STATEMENT

Introduction

1. The Sixth Annual Meeting of the Asia Pacific Forum of National Human Rights
Institutions, consisting of the National Human Rights Commissions of Sri Lanka,
Australia, Fiji, India, Indonesia, Mongolia, Nepal, New Zealand and the Philippines,
met in Colombo, Sri Lanka from 24th to 27th September 2001.

2. The Forum expressed its gratitude to the Human Rights Commission of Sri Lanka for
hosting the meeting, to the United Nations Office of the High Commissioner for
Human Rights for its co-sponsorship and to the governments of Australia and New
Zealand for their financial support. The Forum expressed its particular appreciation
for the efforts of the Commissioners and staff of the Human Rights Commission of
Sri Lanka and the Secretariat of the Forum for their work in the organization of the
meeting.

3. The Forum welcomed the participation of over 100 representatives as observers from
regional governments, other relevant institutions and international, regional and
national non-governmental organizations. Participants included government
representatives from Australia, China, the Republic of Korea, Laos, New Zealand,
Papua New Guinea, Samoa and Sri Lanka. They also included representatives from
36 non-governmental organizations.

4. The Chief Justice of Sri Lanka, the Hon. Sarath Silva, the Regional Advisor in the
Asia Pacific to the United Nations High Commissioner for Human Rights and the
Chairman of the United Nations Human Rights Committee, Justice P N Bhagwati and
the Chairman of the Human Rights Commission of Sri Lanka and the Chairperson of
the Asia Pacific Forum of National Human Rights Institutions, Mr Faisz Musthapha
PC, opened the meeting. In the opening statements the distinguished speakers
welcomed the role of the Forum as a unique regional organization for the promotion
and protection of human rights and called on the United Nations, governments and
private foundations to provide strong financial and material support for the activities
of the Forum.

Conclusions

5. Forum members considered the report of the working group appointed at the Fourth
and Fifth Annual Meetings to examine issues associated with the legal and
governance structure of the Forum. Forum members agreed to a new constitution.
Forum members also discussed its strategic direction and determined its mission and

106
 vision statements as well as key strategic priorities. Forum members agreed to
develop evaluation and feedback mechanisms to ensure that the Forum’s priorities are
being achieved.

6. The Forum affirmed that the status and responsibilities of national institutions should
be consistent with the Principles Relating to the Status of National Institutions
adopted by the United Nations General Assembly (Resolution 48/134) commonly
referred to as the ‘Paris Principles’. On this basis it admitted the National Human
Rights Commission of Mongolia as a member increasing the Forum’s membership to
nine institutions.

7. Forum members unanimously elected the Human Rights Commission of Sri Lanka
(as the current host institution of the annual meeting) to the position of Chairperson of
the Forum. The National Human Rights Commission of Nepal (as the host institution
for the next annual meeting) and the New Zealand Human Rights Commission (as the
immediate past Regional Coordinator) were also elected unanimously to the two
positions of Deputy Chairpersons. The term of these positions will be until the next
annual meeting of the Forum. Further, Forum members elected the Australian
Human Rights and Equal Opportunity Commission, the Fiji Human Rights
Commission, the National Human Rights Commission of India and the Philippines
Commission on Human Rights to be the four regional representatives to the
International Coordinating Committee of National Institutions. Forum members
agreed that these positions should rotate among all members of the Forum and
requested that the Secretariat develop guidelines on the rotation process for the
consideration of Forum members.

8. The Forum agreed on the need to provide further support to its member institutions,
particularly newly established institutions. The Forum requested that the Secretariat
write to all member institutions seeking information on any practical assistance they
may wish to seek from the Forum and, in turn, indicating the expertise and skills that
they could provide to the Forum. The Forum calls for the exchange of staff amongst
member institutions and requests the Secretariat to seek the necessary funds for this to
occur. The Forum also agreed to explore the possibility of bringing together the
senior executive officers of the member institutions to discuss areas of mutual
concern for the effective and efficient functioning of national institutions.

9. The Forum agreed that relations between non-governmental organizations (NGOs)

and national human rights institutions were of great importance in the work to protect
and promote human rights. Forum members and human rights NGOs re-affirmed
their commitment to continue to develop close and collaborative working
relationships based on mutual benefit and respect and as detailed in the Forum’s 1999
Kandy Program of Action.

10. Forum members agreed that HIV/AIDS should not be viewed as solely a health issue
but as a human rights issue because of its serious economic, social and cultural
implications. Forum members, therefore, committed themselves to combat

107
 discrimination and human rights violations on the basis of HIV/AIDS and called upon
the assistance of the United Nations, governments and NGOs in the performance of
this task. The Forum welcomed the initiative to hold a regional workshop on the
issue of ‘HIV/AIDS and Human Rights’ from 7th to 8th October 2001 in Melbourne,
Australia, and looked forward to the conclusions of the workshop. The Forum also
requested the Secretariat to develop and seek funding for the implementation of
practical projects to assist Forum members to undertake work in this area.

11. The Forum continued its specific commitment to the promotion and protection of the
human rights of women by focusing on discrimination on the basis of gender and the
exploitation of women. The Forum endorsed the proposal to hold a regional
workshop on the issue of trafficking in 2002. Forum members also welcomed the
idea that practical projects should be developed to combat trans-border trafficking and
requested the Secretariat to seek funds for this purpose.

12. The Forum welcomed the production of the video documentary on the role of national
institutions in the Asia Pacific region. Forum members agreed to consider the use of
the documentary through their domestic media networks and as part of their
educational activities. The Forum requested that the Secretariat and the United
Nations work together to use the video to inform governments and NGOs about the
work of national institutions.

13. The Regional Advisor in the Asia Pacific to the United Nations High Commissioner
for Human Rights emphasized the strong commitment the High Commissioner had
shown, and continues to show, for the work of the Forum. The Director of the Forum
Secretariat emphasized the necessity of continuing the close and collaborative
relationship between the United Nations and the Forum in the implementation of
projects to promote regional cooperation. Forum members strongly endorsed this
collaborative partnership and the proposal to establish an overall institutional
strengthening project with the Office of the High Commissioner for Human Rights
for the activities of the Forum. Forum members also stressed the need for the
international treaty bodies and the United Nations special mechanisms to work
closely with national institutions and requested that the Secretariat and the Office of
the High Commissioner consider ways in which this may implemented.

14. The Forum considered the difficulties faced by national institutions operating in both
domestic and international conflict situations and stressed that it was vital that the
pursuit and prosecution of perpetrators of human rights violations and crimes against
humanity is in accordance with the rule of law. Forum members stressed that all
measures to apprehend and prosecute the perpetrators should be undertaken in a
manner that is consistent with human rights and humanitarian law. Forum members
further stressed that in conflict situations it was all the more important that the
independence of national institutions be maintained and respected. National
institutions will also act to protect human rights defenders.

108
15. The Forum requested that the Secretariat seek funds to hold a regional workshop on
the ratification of the Statute of Rome and its entry into force.

16. Forum members discussed the statement adopted by national institutions at the World
Conference Against Racism, Racial Discrimination, Xenophobia and Related
Intolerance and the final Declaration and Program of Action of the conference.
Forum members welcomed the outcomes of the conference and congratulated the
High Commissioner for Human Rights for her positive role. Note was taken with
appreciation of the important role played by national institutions at the World
Conference. The Forum endorsed the Statement of National Institutions
(A/CONF.189/Misc.1) and agreed to follow up on its recommendations. Forum
members emphasized the importance of focusing on practical initiatives in
implementing the outcomes contained in the final Declaration and Program of Action
of the World Conference.

17. Forum members reported on their consideration of the recommendations of the

Advisory Council of Jurists’ reports on the death penalty and child pornography on
the internet. It was noted that both Forum members and NGOs had used the
conclusions of the Advisory Council of Jurists in their work. It was agreed that this
topic should remain on the agenda of the Forum’s annual meetings to enable Forum
members to report back on actions they have taken and any developments that have
occurred. Forum members also decided in principle to formulate a reference to the
Advisory Council of Jurists on the issue of trafficking.

18. Forum members discussed the United Nations Guiding Principles on Internal
Displacement. While the responsibility for the protection of internally displaced
persons rests first and foremost with national governments and local authorities, the
role of national institutions in ensuring that the State meets its obligations and that the
human rights of internally displaced persons are protected was highlighted. Forum
members welcomed the opportunity to share their experiences on this issue and
requested the Secretariat seek funds for national institutions that request assistance
with this issue.

19. Forum members expressed their appreciation for the consistent support extended by
the Office of the High Commissioner and the Australian and New Zealand
governments towards the work of the Forum. Forum members also warmly thanked
the Australian Human Rights and Equal Opportunity Commission for the special
support it has given to the Forum during its formation and establishment.

20. The Forum gratefully accepted the kind offer of the National Human Rights
Commission of Nepal to host the Seventh Annual Meeting of the Asia Pacific Forum
of National Human Rights Institutions in approximately twelve months time.

A report on the meeting will soon be available on the Forum website.

www.apf.hreoc.gov.au

109
ANNEX 4: Table of Legal Obligations

110
 International and Regional Standards Applicable to Trafficking in Persons
Prepared by Joanna Bourke-Martigny and Anne Gallagher
Definition of trafficking in
persons
Specific international treaty norms on trafficking in persons
Prohibition on trafficking
Specific protections for all
trafficked persons
• “Trafficking in persons” shall mean the recruitment, transportation,
transfer, harboring or receipt of persons, by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent
of a person having control over another person, for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation
of the prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery or practices similar to slavery,
servitude or the removal of organs. (Article 3 (a) Trafficking Protocol)
• States to prevent and combat trafficking in persons, paying particular
attention to women and children (Article 1, Trafficking Protocol)
• States to protect victims of trafficking in persons, especially women
and children, from revictimization (Article 1, Trafficking Protocol)
• States should protect the privacy and identity of victims of trafficking
in persons, inter alia, by making such proceedings confidential
(Article 6, Trafficking Protocol).
• State shall ensure that trafficked persons are provided with information
on relevant court and administrative proceedings and with assistance
to enable their views to be presented in these proceedings (Article 6
section 2, Trafficking Protocol)
• States shall, in cooperation with NGOs, consider providing:
appropriate housing, counseling and information in a language that the
person understands; medical, psychological and material assistance;
and employment, educational and training opportunities. (Article 6
section 3, Trafficking Protocol)
• States should provide for the physical safety of victims of trafficking
while they are within the territory of the State concerned (Article 6
section 5, Trafficking Protocol)
• States shall ensure that their domestic legal systems contain measures
that offer victims of trafficking in persons the possibility of obtaining
compensation for damage suffered (Article 6 section 6, Trafficking
Protocol)
• States shall consider adopting legislative or other appropriate measures
that permit victims of trafficking in persons to remain in their territory,
temporarily or permanently, in appropriate cases (Article 7,
Trafficking Protocol)
• States shall facilitate and accept the return of trafficked persons with
due regard for their safety and without unreasonable delay (Article 8,
Trafficking Protocol)
• In order to facilitate the return of trafficked persons without proper
documentation, the State of origin shall agree to issue travel
documents or other authorization as may be necessary to enable the
person to travel to and re-enter its territory (Article 8 section 4,
Trafficking Protocol)
111

Punishment of trafficking
Law enforcement and
trafficking
Prevention of trafficking
Trafficking in and related
exploitation of children
• States are required to make suitable provisions for the temporary care
and maintenance of destitute trafficked persons pending the
completion of repatriation arrangements (Article 17 section 1,
Convention for the Suppression of Traffic in Persons and of the
Exploitation of the Prostitution of Others)
• States to adopt legislative and other measures to establish trafficking,
attempted trafficking and complicity in trafficking as criminal offences
under national law (Article 5, Trafficking Protocol)
• States to take steps to punish persons who procure or exploit the
prostitution of others including persons who keep, manage or
knowingly finance brothels (Article 2, Convention for the Suppression
of Traffic in Persons and of the Exploitation of the Prostitution of
Others)
• Law enforcement, immigration or other relevant authorities shall, as
appropriate cooperate with one another by exchanging information in
accordance with their domestic law to allow them to determine the
types of travel documents, recruitment techniques, transportation
routes and links between and among individuals and groups engaged
in trafficking, and possible measures for detecting them (Article 10,
Trafficking Protocol)
• States shall provide or strengthen training for law enforcement,
immigration and other relevant officials in the prevention of
trafficking in persons. The focus of this training should be on
preventing trafficking, prosecuting traffickers and protecting the rights
of victims. Officials should be trained to consider, human rights, child
and gender-sensitive issues. Cooperation with NGOs and other
relevant organizations is encouraged. (Article 10 section 2, Trafficking
Protocol)
• States to provide or strengthen training for law enforcement,
immigration and other relevant officials in the prevent of trafficking in
persons (Article 10 section 2, Trafficking Protocol)
• States to include cooperation with NGOs, other relevant organizations
and other elements of civil society when establishing programs and
policies (Article 9 section 3, Trafficking Protocol)
• States to take or strengthen measures, including through bilateral or
multilateral cooperation, to alleviate the factors that make persons
vulnerable to trafficking, such as poverty, underdevelopment or lack of
equal opportunity (Article 9, section 4, Trafficking Protocol)
• States to adopt or strengthen legislative or other measures such as
educational, social or cultural measures to discourage the demand that
fosters all forms of exploitation that leads to trafficking (Article 9
section 5, Trafficking Protocol)
• States to prevent and combat trafficking in persons, paying particular
attention to women and children (Article 1, Trafficking Protocol)
• States to protect victims of trafficking in persons, especially women
and children, from revictimization (Article 1, Trafficking Protocol)
• States to take into account the special needs of child victims of
trafficking in persons in regard to housing, education, and care (Article
6 section 4, Trafficking Protocol)
• States to take measures to prevent the abduction of, sale of, and
trafficking of children (Article 35, Convention on the Rights of the
Child)
112
 • States to ensure protection of children from sexual exploitation
including unlawful sexual activity, prostitution, and pornographic
performance or material (Article 34, Convention on the Rights of the
Child)
• States Parties shall protect the child against all other forms of
exploitation prejudicial to any aspects of the child’s welfare (Article
36, Convention on the Rights of the Child)
• States Parties recognize the right of the child to be protected from
economic exploitation and from performing any work that is likely to
be hazardous or to interfere with the child’s education, or to be
harmful to the child’s health or physical, mental, spiritual, moral or
social development. States agree to provide a minimum age for
employment as well as regulation of working hours (Article 32,
Convention on the Rights of the Child)
• States to take measures to combat the illicit transfer and non-return of
children abroad (Article 11, Convention on the Rights of the Child)
• States to ensure that, in inter-country adoption, the child concerned
enjoys the safeguards and standards equivalent to those existing in
cases of national adoption. Must ensure that the placement does not
result in improper financial gain for those involved in it. (Article 21,
Convention on the Rights of the Child)
• States Parties shall take all appropriate measures to promote physical
and psychological recovery and social reintegration of child victims
of: any form of neglect, exploitation or abuse; torture or any other
form of inhuman or degrading treatment or punishment etc. (Article
39, Convention on the Rights of the Child)
• States are required to make such regulations as are necessary for the
protection of immigrants or emigrants, and in particular, women and
children, both at the place of arrival and departure and while en route
(Article 17, Convention for the Suppression of Traffic in Persons and
of the Exploitation of the Prostitution of Others)
• States shall take the necessary measures for the supervision of
employment agencies in order to prevent persons seeking employment,
in particular women and children, from being exposed to prostitution
(Article 20, Convention for the Suppression of Traffic in Persons and
of the Exploitation of the Prostitution of Others)
• States to take immediate and effective measures to secure the
prohibition and elimination of the worst forms of child labor
(including the sale and trafficking of children and child prostitution)
(Articles 1 and 3, ILO C182 Worst Forms of Child Labor Convention)
• States to provide the necessary and appropriate direct assistance for
the removal of children from the worst forms of child labor and for
their rehabilitation and social integration (Article 7 section 2, ILO
C182 Worst Forms of Child Labor Convention)
• Children and young persons should be protected from economic and
social exploitation (Article 10 (3), International Covenant on
Economic, Social and Cultural Rights).
• States Parties shall take all practicable and necessary legislative and
other measures to abolish any institution or practice whereby a child is
delivered by either or both of their parents or by a guardian to another
person, whether for reward or not, with a view to the exploitation of
the child or of their labor. (Article 1 (d), Supplementary Convention
on the Abolition of Slavery, the Slave Trade, and Institutions and
Practices Similar to Slavery (1956))

Prohibition on trafficking in • States to prevent and combat trafficking in persons, paying particular

113
women and forced attention to women and children (Article 1, Trafficking Protocol)
prostitution • States to protect victims of trafficking in persons, especially women
and children, from revictimization (Article 1, Trafficking Protocol)
• States to take appropriate measures, including legislation, to suppress
all forms of trafficking in women and the exploitation of prostitution
in women (Article 6, Convention on the Elimination of All Forms of
Discrimination Against Women)
• States to ensure the right of women to protection and safety in working
conditions as well as the right to choose a profession (Article 11 parts
c, f, Convention on the Elimination of All Forms of Discrimination
Against Women)
• States to take all necessary measures to repeal any existing law,
regulation or administrative provision by virtue of which persons
engaged in or suspected of engaging in prostitution are subjected to
special registration or supervision (Article 6, Convention for the
Suppression of Traffic in Persons and of the Exploitation of the
Prostitution of Others)
• States are required to make such regulations as are necessary for the
protection of immigrants or emigrants, and in particular, women and
children, both at the place of arrival and departure and while en route
(Article 17, Convention for the Suppression of Traffic in Persons and
of the Exploitation of the Prostitution of Others)
• States shall take the necessary measures for the supervision of
employment agencies in order to prevent persons seeking employment,
in particular women and children, from being exposed to prostitution
(Article 20, Convention for the Suppression of Traffic in Persons and
of the Exploitation of the Prostitution of Others)
• In situations of international armed conflict, protected persons and
women in particular are to be protected against enforced prostitution
(Articles 27, Fourth Geneva Convention and 76 (1) Protocol I
Additional to the Geneva Conventions).
Trafficking in situations of • Individuals may be prosecuted for enslavement and sexual slavery as
armed conflict crimes against humanity and for sexual slavery as a war crime. It is
understood that criminal conduct under these Articles includes
trafficking in persons, particularly in women and children. (Articles 7
(1) (c), 7 (2) (c), 8 (2) (b)(xxii)-2, 8 (2) (e) (iv)-2, Rome Statute of the
International Criminal Court.)

General international human rights and humanitarian law norms relevant to

trafficking in persons

Prohibition on slavery and
servitude
• No one shall be held in slavery or servitude; slavery and the slave
trade shall be prohibited in all their forms (Article 4, UDHR)
• States to ensure that no one be held in slavery; slavery and the slave
trade in all their forms shall be prohibited (Article 8 section 1,
International Covenant on Civil and Political Rights)
• No one shall be held in servitude (Article 8 section 2, International
Covenant on Civil and Political Rights)
• The act of conveying or attempting to convey slaves from one country
to another or of being an accessory thereto, shall be a criminal offence
under the laws of States Parties to this Convention. (Article 3,
Supplementary Convention on the Abolition of Slavery, the Slave

114

Forced and compulsory labor
and debt bondage
Forced marriage
Right to life
Trade, and Institutions and Practices Similar to Slavery (1956))
• States Parties shall take all effective measures to ensure that their
ports, airfields and coasts are not used for the conveyance of slaves.
(Article 3 (b), Supplementary Convention on the Abolition of Slavery,
the Slave Trade, and Institutions and Practices Similar to Slavery
(1956))
• States Parties shall exchange information in order to ensure the
practical coordination of measures taken by them in combating the
slave trade and shall inform each other of every case of the slave trade,
and of every attempt to commit this criminal offence, which comes to
their notice. (Article 3 (3), Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery (1956))
• In situations of non-international armed conflict, persons hors de
combat shall be protected against slavery and the slave trade in all
their forms (Article 4 (2) (f) Protocol II Additional to the Geneva
Conventions)
• No one shall be required to perform forced or compulsory labor
(Article 8 section 3a, International Covenant on Civil and Political
Rights)
• States Parties shall take all practicable and necessary legislative and
other measures to bring about the complete abolition or abandonment
of inter alia, debt bondage and serfdom. (Article 1, Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery)
• Marriage shall be entered into only with the free and full consent of
the intending spouses (Article 16 (2), UDHR)
• Marriage must be entered into with the free consent of the intending
spouses (Article 10, International Covenant on Economic, Social and
Cultural Rights)
• No marriage shall be entered into without the free and full consent of
the intending spouses (Article 23, International Covenant on Civil and
Political Rights)
• States Parties shall ensure that women and men have the same right to
freely choose a spouse and to enter into marriage only with their free
and full consent (Article 16, Convention on the Elimination of
Discrimination against Women).
• States Parties to take all practicable and necessary legislative and other
measures to bring about the abolition of any institution or practice
whereby: (a) a woman, without the right to refuse, is promised or
given in marriage on payment of a consideration in money or in kind;
(b) the husband of the woman, his family, or his clan, has the right to
transfer her to another person for value received or otherwise; or (c) a
woman on the death of her husband is liable to be inherited by another
person (Article 1(c) Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery (1956)).
• (UN Convention on Consent to Marriage, Minimum Age of Marriage
and Registration of Marriages (1962))
• Everyone has the right to life, liberty and security of person (Article 3,
UDHR)
• Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
(Article 6, International Covenant on Civil and Political Rights)
• Every child has the inherent right to life. States Parties shall ensure to
the maximum extent possible the survival and development of the
115
 child (Article 6, Convention on the Rights of the Child)
Liberty and security of the • Everyone has the right to life, liberty and security of person (Article 3,
person UDHR)
• Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived
of his liberty except on such grounds and in accordance with such
procedure as are established by law (Article 9 (1), International
Covenant on Civil and Political Rights)
• No child shall be deprived of his or her liberty unlawfully or
arbitrarily. (Article 37 (b) Convention on the Rights of the Child)
Freedom from torture, • No one shall be subjected to torture or to cruel, inhuman or degrading
inhuman and degrading treatment or punishment (Article 5, UDHR)
treatment • No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment (Article 7, International Covenant on Civil
and Political Rights)
• Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory
under its jurisdiction (Article 2, Convention against Torture).
• No State Party shall expel, return or extradite a person to another State
where there are substantial grounds for believing that he would be in
danger of being subjected to torture (Article 3, Convention against
Torture).
• No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. (Article 37, Convention on the
Rights of the Child)
Non-discrimination and • Everyone is entitled to all of the rights and freedoms set forth in this
equality before the law Declaration without distinction of any kind. All are equal before the
law and are entitled without any discrimination to equal protection of
the law (Articles 2 and 7, UDHR).
• States Parties to ensure that women and men have equal rights to the
enjoyment of all economic, social and cultural rights set out in the
Covenant (Article 3, International Covenant on Economic, Social and
Cultural Rights).
• Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant without
distinction of any kind. (Article 2, International Covenant on Civil and
Political Rights)
• All persons shall be equal before the courts and tribunals (Article 14,
International Covenant on Civil and Political Rights)
• All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law (Article 26,
International Covenant on Civil and Political Rights)
• States Parties to ensure the equal right of men and women to the
enjoyment of all civil and political rights set forth in the Covenant.
(Article 3, International Covenant on Civil and Political Rights)
Right to seek asylum • Everyone has the right to seek and to enjoy in other countries asylum
from persecution (Article 14, UDHR)
• No Contracting State shall expel or return (‘refouler’) a refugee in any
manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion. (Article 33, 1951 Convention on the Status of Refugees)
Freedom of movement • Everyone has the right to freedom of movement and residence and
everyone has the right to leave any country and to return to their own
country. (Article 13, UDHR)

116

Right to just and favorable
working conditions
Right to health
Right to education
Violence against women
Rights of non-citizens
• Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
their own residence. Everybody shall be free to leave any country,
including their own. No one shall be arbitrarily deprived of the right to
enter their own country. (Article 12, International Covenant on Civil
and Political Rights)
• An alien lawfully in the territory of a State Party to the present
Covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law. (Article 13, International Covenant on
Civil and Political Rights)
• States Parties shall accord to men and women the same rights with
regard to the law relating to the movement of persons and the freedom
to choose their residence and domicile (Article 15, Convention on the
Elimination of Discrimination against Women).
• Individual or mass forcible transfers, as well as deportations of
protected persons from occupied territory to the territory of the
Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive. (Article 49, Fourth Geneva
Convention).
• Everyone has the right to work, to free choice of employment, to just
and favorable conditions of work and to protection against
unemployment (Article 23 (1), UDHR).
• Everyone has the right to gain a living by work that is freely chosen
and accepted. Everyone has the right to just and favorable working
conditions. (Articles 6 (1) and 7, International Covenant on Economic,
Social and Cultural Rights).
• Everyone has the right to a standard of living adequate for the health
and well being of himself and of his family, including food, clothing,
housing and medical care and necessary social services (Article 25 (1),
UDHR).
• Everyone has the right to enjoy the highest attainable standard of
physical and mental health (Article 12, International Covenant on
Economic, Social and Cultural Rights)
• States Parties recognize the right of the child to the enjoyment of the
highest attainable standard of health and to facilities for the treatment
of illness and rehabilitation of health (Article 24, Convention on the
Rights of the Child)
• Everyone has the right to education. Education shall be free, at least in
the elementary and fundamental stages. Elementary education shall be
compulsory (Article 26 (1), UDHR).
• Everyone has the right to education. Primary education shall be
compulsory and available free to all (Article 13, International
Covenant on Economic, Social and Cultural Rights)
• States Parties recognize the right of the child to education and shall, in
particular, make primary education compulsory and available free to
all. (Article 28, Convention on the Rights of the Child)
• Declaration on the Elimination of Violence Against Women
• CEDAW General Recommendation no. 19
• Everyone is entitled to all the rights and freedoms set forth in this
Declaration without distinction of any kind. (Article 2, UDHR)
• The States Parties to the present Covenant undertake to guarantee that
the rights enunciated in the present Covenant will be exercised without
discrimination of any kind … Developing countries, with due regard to
human rights and their national economy, may determine to what
extent they would guarantee the economic rights recognized in the
present Covenant to non-nationals. (Article 2, International Covenant
117
 on Economic, Social and Cultural Rights).
• Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind. (Article 2, International Covenant on Civil and
Political Rights).
• This Convention shall not apply to distinctions, exclusions, restrictions
or preferences made by a State Party to this Convention between
citizens and non-citizens. (Article 2, International Convention on the
Elimination of All Forms of Racial Discrimination).
• States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without
discrimination of any kind. (Article 2, Convention on the Rights of the
Child).
• Aliens shall enjoy, in particular, the following rights: (a) the right to
life and security of person; (b) the right to protection against arbitrary
or unlawful interference with privacy; (c) the right to be equal before
the courts, tribunals and all other organs and authorities administering
justice; (c) the right to choose a spouse, to marry, to found a family.
(Article 5, Declaration on the human rights of individuals who are not
nationals of the country in which they live (1985))
• Subject to certain conditions, aliens shall enjoy the right to leave the
country (Article 6, Declaration on the human rights of individuals who
are not nationals of the country in which they live (1985))
• Aliens lawfully in the territory of a State shall enjoy the right to liberty
of movement and freedom to choose their residence (Article 5 (3),
Declaration on the human rights of individuals who are not nationals
of the country in which they live (1985).
• No alien shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment (Article 6, Declaration on the human rights of
individuals who are not nationals of the country in which they live
(1985))
• An alien lawfully in the territory of a State may be expelled only in
pursuance of a decision reached in accordance with the law. Individual
or collective expulsion of aliens on grounds of race, color, religion,
culture, descent or national or ethnic origin is prohibited. (Article 7,
Declaration on the human rights of individuals who are not nationals
of the country in which they live (1985).
• Aliens lawfully residing in the territory of a State shall also enjoy: the
right to safe and healthy working conditions, to fair wages and equal
remuneration for work of equal value without distinction; the right to
join trade unions; the right to health protection, medical care, social
services, education etc. (Article 8, Declaration on the human rights of
individuals who are not nationals of the country in which they live
(1985).
• An alien shall be free to communicate at any time with the consulate
or diplomatic mission of the State of which he or she is a national.
(Article 10, Declaration on the human rights of individuals who are
not nationals of the country in which they live (1985).
Rights of migrants and • Migrant workers and members of their families shall be free to leave
migrant workers any State, including their State of origin. They shall have the right at
any time to enter and remain in their State of origin. (Article 8,
International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, not in force).
• The right to life of migrant workers and members of their families
shall be protected by law (Article 9, International Convention on the

118
 Protection of the Rights of All Migrant Workers and Members of
Their Families, not in force).
• No migrant worker or member of his or her family shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment
(Article 10, International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, not in force).
• No migrant worker or member of his or her family shall be held in
slavery or servitude or required to perform forced or compulsory labor.
(Article 11, International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, not in force).
• Migrant workers and their families shall have the right to liberty and
security of person and they shall be entitled to effective protection by
the State against violence, physical injury, threats and intimidation
whether by public officials or by private individuals, groups or
institutions. (Article 16, International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families,
not in force).
• Migrant workers and their families shall have the right to equality with
nationals of the State concerned before the courts and tribunals.
(Article 18, International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, not in force).
• Migrant workers and their families shall not be subject to measures of
collective expulsion. (Article 22, International Convention on the
Protection of the Rights of All Migrant Workers and Members of
Their Families, not in force).

Selected Regional Standards

Trafficking and judicial • Member States of the European Union shall work together to
cooperation prevent and combat trafficking in persons through closer
cooperation between police forces (including through Europol),
customs authorities, judicial authorities and other relevant
bodies (Article 29, Treaty on European Union).
• The State Parties to this Convention shall grant to each other the
widest measure of mutual legal assistance in respect of
investigations, inquiries, trials or other proceedings in the
requesting State in respect of offences under this Convention.
(Article VI, SAARC Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution).
Trafficking in women and • The purpose of this Convention is to promote cooperation
children for the purpose of amongst Member States so that they may effectively deal with
prostitution the various aspects of prevention, interdiction and suppression
of trafficking in women and children; the repatriation and
rehabilitation of victims of trafficking and prevent the use of
women and children in international prostitution networks,
particularly where countries of the SAARC region are the
countries of origin, transit and destination. (Article II, SAARC
Convention on Preventing and Combating Trafficking in
Women and Children for Prostitution).
Trafficking in and exploitation • States to prevent and punish international trafficking in minors
of children for “unlawful purposes” including prostitution, sexual
exploitation and servitude (Article 2, OAS, Inter-American
Convention on International Traffic in Minors (1994)).

119
 • States Parties shall take all measures to prevent the abduction,
sale of, or traffic in children for any purpose or in any form, by
any person including parents or legal guardians of the child
(Article XXIX, African Charter on the Rights and Welfare of
the Child, 1990)
• Every child shall be protected from all forms of economic
exploitation and from performing any work that is likely to be
hazardous or to interfere with the child’s physical, mental,
spiritual, moral, or social development (Article XV, African
Charter on the Rights and Welfare of the Child, 1990)
• States Parties shall undertake to protect the child from all forms
of sexual exploitation and sexual abuse (Article XXVII, African
Charter on the Rights and Welfare of the Child, 1990)
Violence against women • States agree to pursue policies to prevent, punish and eradicate
all forms of violence against women in the public and private
spheres including trafficking in persons and forced prostitution.
(Articles 2 (b) and 7, Inter-American Convention on the
Prevention, Punishment and Eradication of Violence Against
Women, 1994)

120
ANNEX 5: Chart of Ratifications

121
 Chart of Ratifications

CESCR CCPR CCPR- CEDAW CEDAW- CRC CRC- ILO TRAFFICKING SAARC
OP1 OP OP- No.182 PROTOCOL
SC
Australia R R a R - R s - - n/a

Fiji - - - R - R - R - n/a

India a a - R - a - - - s

Indonesia - - - R s R - R s n/a

Mongolia R R a R R R s R - n/a

Nepal a a a R s R s R - s

New Zealand R R a R R R s R R n/a

Philippines R R a R s R s R R n/a

Sri Lanka a a a R - R - R s s

Malaysia - - - R - a - R - n/a

Republic of a a a R - R s R s n/a
Korea
Thailand a a - A s a - R s n/a

R ratified
a accession
s signed

The relevant human rights instruments include:

CESCR the International Covenant on Economic, Social and Cultural Rights, which is monitored by the
Committee on Economic, Social and Cultural Rights;

CCPR the International Covenant on Civil and Political Rights, which is monitored by the Human Rights
Committee;

CCPR-OP1the Optional Protocol to the International Covenant on Civil and Political Rights, which is
administered by the Human Rights Committee;

CEDAW the Convention on the Elimination of All Forms of Discrimination against Women, which is
monitored by the Committee on the Elimination of Discrimination against Women;

CEDAW-OP the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women;

CRC the Convention on the Rights of the Child, which is monitored by the Committee on the Rights of the
Child;

122
CRC-OP-SC the Optional Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography;

ILO No.182 the International Labor Organization Convention 182 Convention concerning the Prohibition
and Immediate Action for the Elimination of the Worst Forms of Child Labor;

Trafficking Protocol Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, supplementing the United Nations Convention against Transnational Organized Crime; and

SAARC the South Asian Association for Regional Cooperation Convention on Preventing and Combating
Trafficking in Women and children for Prostitution.

123
ANNEX 6: Palermo Trafficking Protocol

124
 PROTOCOL TO PREVENT, SUPPRESS AND PUNISH
TRAFFICKING IN PERSONS, ESPECIALLY WOMEN
AND CHILDREN, SUPPLEMENTING THE UNITED
NATIONS CONVENTION AGAINST
TRANSNATIONAL ORGANIZED CRIME
UNITED NATIONS
2000

Preamble

The States Parties to this Protocol,

Declaring that effective action to prevent and combat trafficking in

persons, especially women and children, requires a comprehensive
international approach in the countries of origin, transit and destination that
includes measures to prevent such trafficking, to punish the traffickers and
to protect the victims of such trafficking, including by protecting their
internationally recognized human rights,

Taking into account the fact that, despite the existence of a variety of
international instruments containing rules and practical measures to combat
the exploitation of persons, especially women and children, there is no
universal instrument that addresses all aspects of trafficking in persons,

Concerned that, in the absence of such an instrument, persons who

are vulnerable to trafficking will not be sufficiently protected,

Recalling General Assembly resolution 53/111 of 9 December 1998,

in which the Assembly decided to establish an open-ended
intergovernmental ad hoc committee for the purpose of elaborating a
comprehensive international convention against transnational organized
crime and of discussing the elaboration of, inter alia, an international
instrument addressing trafficking in women and children,

Convinced that supplementing the United Nations Convention

against Transnational Organized Crime with an international instrument for
the prevention, suppression and punishment of trafficking in persons,
especially women and children, will be useful in preventing and combating
that crime,

Have agreed as follows:

125
 I. General provisions

Article 1
Relation with the United Nations Convention
against Transnational Organized Crime

1. This Protocol supplements the United Nations Convention

against Transnational Organized Crime. It shall be interpreted together with
the Convention.

2. The provisions of the Convention shall apply, mutatis

mutandis, to this Protocol unless otherwise provided herein.

3. The offences established in accordance with article 5 of this

Protocol shall be regarded as offences established in accordance with the
Convention.
Article 2
Statement of purpose

The purposes of this Protocol are:

(a) To prevent and combat trafficking in persons, paying

particular attention to women and children;

(b) To protect and assist the victims of such trafficking, with full
respect for their human rights; and

(c) To promote cooperation among States Parties in order to meet

those objectives.

Article 3
Use of terms

For the purposes of this Protocol:

(a) “Trafficking in persons” shall mean the recruitment,

transportation, transfer, harboring or receipt of persons, by means of the
threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the
giving or receiving of payments or benefits to achieve the consent of a
person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery or practices similar to slavery, servitude or the removal of
organs;

126
 (b) The consent of a victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have been
used;

(c) The recruitment, transportation, transfer, harboring or receipt

of a child for the purpose of exploitation shall be considered “trafficking in
persons” even if this does not involve any of the means set forth in
subparagraph (a) of this article;

(d) “Child” shall mean any person under eighteen years of age.

Article 4
Scope of application

This Protocol shall apply, except as otherwise stated herein, to the

prevention, investigation and prosecution of the offences established in
accordance with article 5 of this Protocol, where those offences are
transnational in nature and involve an organized criminal group, as well as
to the protection of victims of such offences.

Article 5
Criminalization

1. Each State Party shall adopt such legislative and other

measures as may be necessary to establish as criminal offences the conduct
set forth in article 3 of this Protocol, when committed intentionally.

2. Each State Party shall also adopt such legislative and other
measures as may be necessary to establish as criminal offences:

(a) Subject to the basic concepts of its legal system, attempting to

commit an offence established in accordance with paragraph 1 of this
article;

(b) Participating as an accomplice in an offence established in

accordance with paragraph 1 of this article; and

(c) Organizing or directing other persons to commit an offence

established in accordance with paragraph 1 of this article.

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 II. Protection of victims of trafficking in persons

Article 6
Assistance to and protection of victims of
trafficking in persons

1. In appropriate cases and to the extent possible under its

domestic law, each State Party shall protect the privacy and identity of
victims of trafficking in persons, including, inter alia, by making legal
proceedings relating to such trafficking confidential.

2. Each State Party shall ensure that its domestic legal or

administrative system contains measures that provide to victims of
trafficking in persons, in appropriate cases:

(a) Information on relevant court and administrative proceedings;

(b) Assistance to enable their views and concerns to be presented

and considered at appropriate stages of criminal proceedings against
offenders, in a manner not prejudicial to the rights of the defense.

3. Each State Party shall consider implementing measures to

provide for the physical, psychological and social recovery of victims of
trafficking in persons, including, in appropriate cases, in cooperation with
non-governmental organizations, other relevant organizations and other
elements of civil society, and, in particular, the provision of:

(a) Appropriate housing;

(b) Counseling and information, in particular as regards their

legal rights, in a language that the victims of trafficking in persons can
understand;

(c) Medical, psychological and material assistance; and

(d) Employment, educational and training opportunities.

4. Each State Party shall take into account, in applying the

provisions of this article, the age, gender and special needs of victims of
trafficking in persons, in particular the special needs of children, including
appropriate housing, education and care.

5. Each State Party shall endeavor to provide for the physical

safety of victims of trafficking in persons while they are within its territory.

6. Each State Party shall ensure that its domestic legal system

128
contains measures that offer victims of trafficking in persons the possibility
of obtaining compensation for damage suffered.

Article 7
Status of victims of trafficking in persons
in receiving States

1. In addition to taking measures pursuant to article 6 of this

Protocol, each State Party shall consider adopting legislative or other
appropriate measures that permit victims of trafficking in persons to remain
in its territory, temporarily or permanently, in appropriate cases.

2. In implementing the provision contained in paragraph 1 of this

article, each State Party shall give appropriate consideration to
humanitarian and compassionate factors.

Article 8
Repatriation of victims of trafficking in persons

1. The State Party of which a victim of trafficking in persons is a

national or in which the person had the right of permanent residence at the
time of entry into the territory of the receiving State Party shall facilitate
and accept, with due regard for the safety of that person, the return of that
person without undue or unreasonable delay.

2. When a State Party returns a victim of trafficking in persons to

a State Party of which that person is a national or in which he or she had, at
the time of entry into the territory of the receiving State Party, the right of
permanent residence, such return shall be with due regard for the safety of
that person and for the status of any legal proceedings related to the fact
that the person is a victim of trafficking and shall preferably be voluntary.

3. At the request of a receiving State Party, a requested State

Party shall, without undue or unreasonable delay, verify whether a person
who is a victim of trafficking in persons is its national or had the right of
permanent residence in its territory at the time of entry into the territory of
the receiving State Party.

4. In order to facilitate the return of a victim of trafficking in

persons who is without proper documentation, the State Party of which that
person is a national or in which he or she had the right of permanent
residence at the time of entry into the territory of the receiving State Party
shall agree to issue, at the request of the receiving State Party, such travel
documents or other authorization as may be necessary to enable the person
to travel to and re-enter its territory.

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 5. This article shall be without prejudice to any right afforded to
victims of trafficking in persons by any domestic law of the receiving State
Party.

6. This article shall be without prejudice to any applicable

bilateral or multilateral agreement or arrangement that governs, in whole or
in part, the return of victims of trafficking in persons.

III. Prevention, cooperation and other measures

Article 9
Prevention of trafficking in persons

1. States Parties shall establish comprehensive policies,

programs and other measures:

(a) To prevent and combat trafficking in persons; and

(b) To protect victims of trafficking in persons, especially women

and children, from revictimization.

2. States Parties shall endeavor to undertake measures such as

research, information and mass media campaigns and social and economic
initiatives to prevent and combat trafficking in persons.

3. Policies, programs and other measures established in

accordance with this article shall, as appropriate, include cooperation with
non-governmental organizations, other relevant organizations and other
elements of civil society.

4. States Parties shall take or strengthen measures, including

through bilateral or multilateral cooperation, to alleviate the factors that
make persons, especially women and children, vulnerable to trafficking,
such as poverty, underdevelopment and lack of equal opportunity.

5. States Parties shall adopt or strengthen legislative or other

measures, such as educational, social or cultural measures, including
through bilateral and multilateral cooperation, to discourage the demand
that fosters all forms of exploitation of persons, especially women and
children, that leads to trafficking.

Article 10
Information exchange and training

1. Law enforcement, immigration or other relevant authorities of

States Parties shall, as appropriate, cooperate with one another by

130
exchanging information, in accordance with their domestic law, to enable
them to determine:

(a) Whether individuals crossing or attempting to cross an

international border with travel documents belonging to other persons or
without travel documents are perpetrators or victims of trafficking in
persons;

(b) The types of travel document that individuals have used or

attempted to use to cross an international border for the purpose of
trafficking in persons; and

(c) The means and methods used by organized criminal groups for
the purpose of trafficking in persons, including the recruitment and
transportation of victims, routes and links between and among individuals
and groups engaged in such trafficking, and possible measures for detecting
them.

2. States Parties shall provide or strengthen training for law

enforcement, immigration and other relevant officials in the prevention of
trafficking in persons. The training should focus on methods used in
preventing such trafficking, prosecuting the traffickers and protecting the
rights of the victims, including protecting the victims from the traffickers.
The training should also take into account the need to consider human
rights and child- and gender-sensitive issues and it should encourage
cooperation with non-governmental organizations, other relevant
organizations and other elements of civil society.

3. A State Party that receives information shall comply with any

request by the State Party that transmitted the information that places
restrictions on its use.

Article 11
Border measures

1. Without prejudice to international commitments in relation to

the free movement of people, States Parties shall strengthen, to the extent
possible, such border controls as may be necessary to prevent and detect
trafficking in persons.

2. Each State Party shall adopt legislative or other appropriate

measures to prevent, to the extent possible, means of transport operated by
commercial carriers from being used in the commission of offences
established in accordance with article 5 of this Protocol.

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 3. Where appropriate, and without prejudice to applicable
international conventions, such measures shall include establishing the
obligation of commercial carriers, including any transportation company or
the owner or operator of any means of transport, to ascertain that all
passengers are in possession of the travel documents required for entry into
the receiving State.

4. Each State Party shall take the necessary measures, in

accordance with its domestic law, to provide for sanctions in cases of
violation of the obligation set forth in paragraph 3 of this article.

5. Each State Party shall consider taking measures that permit, in

accordance with its domestic law, the denial of entry or revocation of visas
of persons implicated in the commission of offences established in
accordance with this Protocol.

6. Without prejudice to article 27 of the Convention, States

Parties shall consider strengthening cooperation among border control
agencies by, inter alia, establishing and maintaining direct channels of
communication.

Article 12
Security and control of documents

Each State Party shall take such measures as may be necessary,

within available means:

(a) To ensure that travel or identity documents issued by it are of

such quality that they cannot easily be misused and cannot readily be
falsified or unlawfully altered, replicated or issued; and

(b) To ensure the integrity and security of travel or identity

documents issued by or on behalf of the State Party and to prevent their
unlawful creation, issuance and use.

Article 13
Legitimacy and validity of documents

At the request of another State Party, a State Party shall, in

accordance with its domestic law, verify within a reasonable time the
legitimacy and validity of travel or identity documents issued or purported
to have been issued in its name and suspected of being used for trafficking
in persons.

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 IV. Final provisions

Article 14
Saving clause

1. Nothing in this Protocol shall affect the rights, obligations and

responsibilities of States and individuals under international law, including
international humanitarian law and international human rights law and, in
particular, where applicable, the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees and the principle of non-refoulement as
contained therein.

2. The measures set forth in this Protocol shall be interpreted and

applied in a way that is not discriminatory to persons on the ground that
they are victims of trafficking in persons. The interpretation and application
of those measures shall be consistent with internationally recognized
principles of non-discrimination.

Article 15
Settlement of disputes

l. States Parties shall endeavor to settle disputes concerning the

interpretation or application of this Protocol through negotiation.

2. Any dispute between two or more States Parties concerning

the interpretation or application of this Protocol that cannot be settled
through negotiation within a reasonable time shall, at the request of one of
those States Parties, be submitted to arbitration. If, six months after the date
of the request for arbitration, those States Parties are unable to agree on the
organization of the arbitration, any one of those States Parties may refer the
dispute to the International Court of Justice by request in accordance with
the Statute of the Court.

3. Each State Party may, at the time of signature, ratification,

acceptance or approval of or accession to this Protocol, declare that it does
not consider itself bound by paragraph 2 of this article. The other States
Parties shall not be bound by paragraph 2 of this article with respect to any
State Party that has made such a reservation.

4. Any State Party that has made a reservation in accordance with

paragraph 3 of this article may at any time withdraw that reservation by
notification to the Secretary-General of the United Nations.

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 Article 16
Signature, ratification, acceptance,
approval and accession

1. This Protocol shall be open to all States for signature from 12

to 15 December 2000 in Palermo, Italy, and thereafter at United Nations
Headquarters in New York until 12 December 2002.

2. This Protocol shall also be open for signature by regional

economic integration organizations provided that at least one member State
of such organization has signed this Protocol in accordance with paragraph
1 of this article.

3. This Protocol is subject to ratification, acceptance or approval.

Instruments of ratification, acceptance or approval shall be deposited with
the Secretary-General of the United Nations. A regional economic
integration organization may deposit its instrument of ratification,
acceptance or approval if at least one of its member States has done
likewise. In that instrument of ratification, acceptance or approval, such
organization shall declare the extent of its competence with respect to the
matters governed by this Protocol. Such organization shall also inform the
depositary of any relevant modification in the extent of its competence.

4. This Protocol is open for accession by any State or any

regional economic integration organization of which at least one member
State is a Party to this Protocol. Instruments of accession shall be deposited
with the Secretary-General of the United Nations. At the time of its
accession, a regional economic integration organization shall declare the
extent of its competence with respect to matters governed by this Protocol.
Such organization shall also inform the depositary of any relevant
modification in the extent of its competence.

Article 17
Entry into force

1. This Protocol shall enter into force on the ninetieth day after
the date of deposit of the fortieth instrument of ratification, acceptance,
approval or accession, except that it shall not enter into force before the
entry into force of the Convention. For the purpose of this paragraph, any
instrument deposited by a regional economic integration organization shall
not be counted as additional to those deposited by member States of such
organization.

2. For each State or regional economic integration organization

ratifying, accepting, approving or acceding to this Protocol after the deposit
of the fortieth instrument of such action, this Protocol shall enter into force

134
on the thirtieth day after the date of deposit by such State or organization of
the relevant instrument or on the date this Protocol enters into force
pursuant to paragraph 1 of this article, whichever is the later.

Article 18
Amendment

1. After the expiry of five years from the entry into force of this
Protocol, a State Party to the Protocol may propose an amendment and file
it with the Secretary-General of the United Nations, who shall thereupon
communicate the proposed amendment to the States Parties and to the
Conference of the Parties to the Convention for the purpose of considering
and deciding on the proposal. The States Parties to this Protocol meeting at
the Conference of the Parties shall make every effort to achieve consensus
on each amendment. If all efforts at consensus have been exhausted and no
agreement has been reached, the amendment shall, as a last resort, require
for its adoption a two-thirds majority vote of the States Parties to this
Protocol present and voting at the meeting of the Conference of the Parties.

2. Regional economic integration organizations, in matters within

their competence, shall exercise their right to vote under this article with a
number of votes equal to the number of their member States that are Parties
to this Protocol. Such organizations shall not exercise their right to vote if
their member States exercise theirs and vice versa.

3. An amendment adopted in accordance with paragraph 1 of this

article is subject to ratification, acceptance or approval by States Parties.

4. An amendment adopted in accordance with paragraph 1 of this

article shall enter into force in respect of a State Party ninety days after the
date of the deposit with the Secretary-General of the United Nations of an
instrument of ratification, acceptance or approval of such amendment.

5. When an amendment enters into force, it shall be binding on

those States Parties which have expressed their consent to be bound by it.
Other States Parties shall still be bound by the provisions of this Protocol
and any earlier amendments that they have ratified, accepted or approved.

Article 19
Denunciation

1. A State Party may denounce this Protocol by written

notification to the Secretary-General of the United Nations. Such
denunciation shall become effective one year after the date of receipt of the
notification by the Secretary-General.

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 2. A regional economic integration organization shall cease to be
a Party to this Protocol when all of its member States have denounced it.

Article 20
Depositary and languages

1. The Secretary-General of the United Nations is designated

depositary of this Protocol.

2. The original of this Protocol, of which the Arabic, Chinese,

English, French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned plenipotentiaries, being
duly authorized thereto by their respective Governments, have signed this Protocol.

136
ANNEX 7: SAARC Convention

137
 SAARC CONVENTION ON
PREVENTING AND COMBATING TRAFFICKING IN
WOMEN AND CHILDREN FOR PROSTITUTION

THE MEMBER STATES OF THE SOUTH ASIAN ASSOCIATION FOR

REGIONAL COOPERATION (SAARC), PARTIES TO THE PRESENT
CONVENTION

EMPHASISING that the evil of trafficking in women and children for the
purpose of prostitution is incompatible with the dignity and honor of human beings and is
a violation of basic human rights;

RECALLING the decision of the Ninth SAARC Summit (May, 1997) that the
feasibility of a regional Convention to combat the grave crime of trafficking in women
and children for prostitution should be explored;

RECALLING ALSO the relevant international legal instruments relating to

prevention of trafficking in women and children, including the Convention for the
Suppression of Trafficking in Persons and of the Exploitation of Prostitution of Others,
1949; Convention on the Elimination of All Forms of Discrimination against Women,
1979; International Covenant on Civil and Political Rights, 1966; and the Convention on
the Rights of the Child, 1989;

GIVING due regard to the implementation of the recommendations of the various

pertinent International Bodies and Conferences including the Fourth World Conference
on Women at Beijing (1995);

NOTING with concern the increasing exploitation by traffickers of women and

children from SAARC countries and their increasing use of these countries as sending,
receiving and transit points;

RECOGNISING in this regard the importance of establishing effective regional

cooperation for preventing trafficking for prostitution and for investigation, detection,
interdiction, prosecution and punishment of those responsible for such trafficking;

EMPHASISING the need to strengthen cooperation in providing assistance,

rehabilitation and repatriation to victims of trafficking for prostitution;

HAVE AGREED as follows:

138
 Article I
DEFINITIONS

For the purpose of this Convention:

1) "Child" means a person who has not attained the age of 18 years;

2) "Prostitution" means the sexual exploitation or abuse of persons for commercial

purposes;

3) "Trafficking" means the moving, selling or buying of women and children for
prostitution within and outside a country for monetary or other considerations
with or without the consent of the person subjected to trafficking;

4) "Traffickers" means persons, agencies or institutions engaged in any form of

trafficking;

5) "Persons subjected to trafficking" means women and children victimized or

forced into prostitution by the traffickers by deception, threat, coercion,
kidnapping, sale, fraudulent marriage, child marriage, or any other unlawful
means;

6) "Protective home" means a home established or recognized by a Government of

a Member State for the reception, care, treatment and rehabilitation of rescued
or arrested persons subjected to trafficking.

7) "Repatriation" means return to the country of origin of the person subjected to

trafficking across international frontiers.

Article II
SCOPE OF THE CONVENTION

The purpose of this Convention is to promote cooperation amongst Member

States so that they may effectively deal with the various aspects of prevention,
interdiction and suppression of trafficking in women and children; the repatriation and
rehabilitation of victims of trafficking and prevent the use of women and children in
international prostitution networks, particularly where the countries of the SAARC region
are the countries of origin, transit and destination.

Article III
OFFENCES

1. The State Parties to the Convention shall take effective measures to ensure that
trafficking in any form is an offence under their respective criminal law and shall make

139
such an offence punishable by appropriate penalties which take into account its grave
nature.

2. The State Parties to the Convention, in their respective territories, shall provide
for punishment of any person who keeps, maintains or manages or knowingly finances or
takes part in the financing of a place used for the purpose of trafficking and knowingly
lets or rents a building or other place or any part thereof for the purpose of trafficking.

3. Any attempt or abetment to commit any crime mentioned in paras 1 and 2 above
or their financing shall also be punishable.

Article IV
AGGRAVATING CIRCUMSTANCES

1. The State Parties to the Convention shall ensure that their courts having
jurisdiction over the offences committed under this Convention, can take into account
factual circumstances which make the commission of such offences particularly grave,
viz.

a) the involvement in the offences of an organized criminal group to which the

offender belongs;

b) the involvement of the offender in other international organized criminal

activities;

c) the use of violence or arms by the offender;

d) the fact that the offender holds a public office and that the offence is committed
in misuse of that office;

e) the victimization or trafficking of children;

f) the fact that the offence is committed in a custodial institution or in an

educational institution or social facility or in their immediate vicinity or in other
places to which children and students visit for educational, sports, social and
cultural activities;

g) previous conviction, particularly for similar offences, whether in a Member

State or any other country.

140
 Article V
JUDICIAL PROCEEDINGS

In trying offences under this Convention, judicial authorities in Member States

shall ensure that the confidentiality of the child and women victims is maintained and that
they are provided appropriate counseling and legal assistance.

Article VI
MUTUAL LEGAL ASSISTANCE

1. The State Parties to the Convention shall grant to each other the widest measure
of mutual legal assistance in respect of investigations, inquiries, trials or other
proceedings in the requesting State in respect of offences under this Convention. Such
assistance shall include:

a) taking of evidence and obtaining of statements of persons;

b) provision of information, documents and other records including criminal and

judicial records;

c) location of persons and objects including their identification;

d) search and seizures;

e) delivery of property including lending of exhibits;

f) making detained persons and others available to give evidence or assist

investigations;

g) service of documents including documents seeking attendance of persons; and

h) any other assistance consistent with the objectives of this Convention.

2. Requests for assistance shall be executed promptly in accordance with their

national laws and in the manner requested by the Requesting State. In the event that the
Requested State is not able to comply in whole or in part with a request for assistance or
decides to postpone execution it shall promptly inform the Requesting State and shall
give reasons for the same.

141
 Article VII
EXTRADITION OR PROSECUTION

1. The offences referred to in the present Convention shall be regarded as

extraditable offences in any extradition treaty which has been or may hereinafter be
concluded, between any of the Parties to the Convention.

2. If a State Party which makes extradition conditional on the existence of a treaty,

receives a request for extradition from another State Party with which it has no
extradition treaty, the Requested State shall, if so permitted by its laws, consider this
Convention as the basis for extradition in respect of the offences set forth in Article III.

3. Extradition shall be granted in accordance with the laws of the State to which the
request is made.

4. The State Party in whose territory the alleged offender is present shall, if it does
not extradite him or her, submit, without exception whatsoever and without undue delay,
the case to its competent authorities for the purpose of prosecution in accordance with the
laws of that State.

5. In States where extradition of their nationals is not permitted under their law,
nationals who have committed offences under the present Convention shall be prosecuted
and punished by their courts.

Article VIII
MEASURES TO PREVENT AND INTERDICT TRAFFICKING
IN WOMEN AND CHILDREN

1. The State Parties to the Convention shall provide sufficient means, training and
assistance to their respective authorities to enable them to effectively conduct inquiries,
investigations and prosecution of offences under this Convention.

2. The State Parties to the Convention shall sensitize their law enforcement agencies
and the judiciary in respect of the offences under this Convention and other related
factors that encourage trafficking in women and children.

3. The State Parties to the Convention shall establish a Regional Task Force
consisting of officials of the Member States to facilitate implementation of the provisions
of this Convention and to undertake periodic reviews.

4. The State Parties to the Convention may also, by mutual agreement, set up
bilateral mechanisms to effectively implement the provisions of the Convention,
including appropriate mechanisms for cooperation to interdict trafficking in women and
children for prostitution.

142
5. The State Parties to the Convention shall exchange, on a regular basis,
information in respect of agencies, institutions and individuals who are involved in
trafficking in the region and also identify methods and routes used by the traffickers
through land, water or air. The information so furnished shall include information of the
offenders, their fingerprints, photographs, methods of operation, police records and
records of conviction.

6. The State Parties to the Convention may consider taking necessary measures for
the supervision of employment agencies in order to prevent trafficking in women and
children under the guise of recruitment.

7. The State Parties to the Convention shall endeavor to focus preventive and
development efforts on areas which are known to be source areas for trafficking.

8. The State Parties to the Convention shall promote awareness, inter-alia, through
the use of the media, of the problem of trafficking in women and children and its
underlying causes including the projection of negative images of women.

Article IX
CARE, TREATMENT, REHABILITATION AND
REPATRIATION OF THE VICTIMS

1. The State Parties to the Convention shall work out modalities for repatriation of
the victims to the country of origin.

2. Pending the completion of arrangements for the repatriation of victims of

cross-border trafficking, the State Parties to the Convention shall make suitable
provisions for their care and maintenance. The provision of legal advice and health care
facilities shall also be made available to such victims.

3. The State Parties to the Convention shall establish protective homes or shelters for
rehabilitation of victims of trafficking. Suitable provisions shall also be made for granting
legal advice, counseling, job training and health care facilities for the victims.

4. The State Parties to the Convention may also authorize the recognized non-
governmental organizations to establish such protective homes or shelters for providing
suitable care and maintenance for the victims of trafficking.

5. The State Parties to the Convention shall encourage recognized non-governmental

organizations in efforts aimed at prevention, intervention and rehabilitation, including
through the establishment of such protective homes or shelters for providing suitable care
and maintenance for the victims of trafficking.

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 Article X
IMPLEMENTATION

The State Parties to the Convention shall adopt, in accordance with their
respective Constitutions, the legislative and other measures necessary to ensure the
implementation of the Convention.

Article XI
HIGHER MEASURES

The measures provided for in the Convention are without prejudice to higher
measures of enforcement and protection accorded by relevant national laws and
international agreements.

Article XII
SIGNATURE AND RATIFICATION

The Convention shall be open for signature by the Member States of SAARC at
the Eleventh SAARC Summit at Kathmandu and thereafter, at the SAARC Secretariat at
Kathmandu. It shall be subject to ratification. The Instruments of Ratification shall be
deposited with the Secretary-General.

Article XIII
ENTRY INTO FORCE

This Convention shall enter into force on the fifteenth day following the day of
the deposit of the seventh Instrument of Ratification with the Secretary-General.

Article XIV
DEPOSITORY

The Secretary-General shall be the depository of this Convention and shall notify
the Member States of signatures to this Convention and all deposits of Instruments of
Ratification. The Secretary-General shall transmit certified copies of such instruments to
each Member State. The Secretary-General shall also inform Member States of the date
on which this Convention will have entered into force in accordance with Article XIII.

144
 IN WITNESS WHEREOF the undersigned, being duly authorized thereto by
their respective Governments, have signed this Convention.

DONE at Kathmandu on this Fifth Day of January Two Thousand and Two, in
nine originals, in the English Language, all texts being equally authentic.

M. MORSHED KHAN JIGMI Y. THINLEY

Minister for Foreign Affairs Minister of Foreign Affairs
People's Republic of Bangladesh Kingdom of Bhutan

JASWANT SINGH FATHULLA JAMEEL

Minister of External Affairs Minister of Foreign Affairs
Republic of India Republic of Maldives

RAM SHARAN MAHAT ABDUL SATTAR

Minister of Finance and Leader Minister of Foreign Affairs
of the Delegation of Nepal Islamic Republic of Pakistan
Kingdom of Nepal

TYRONNE FERNANDO
Minister of Foreign Affairs
Democratic Socialist Republic of Sri Lanka

____________________________

The Declaration of the

Eleventh SAARC Summit of the
Heads of State or Government of the
Member Countries of the
South Asian Association for
Regional Cooperation
issued on
6 January 2002, in Kathmandu
145
ANNEX 8: UN High Commissioner’s Recommended Principles and Guidelines on
Human Rights and Human Trafficking

146
 Recommended Principles and Guidelines on Human Rights and
Human Trafficking

Report of the United Nations High Commissioner for Human Rights

to the Economic and Social Council Recommended Principles on
Human Rights and Human Trafficking407
The primacy of human rights
1. The human rights of trafficked persons shall be at the centre of
all efforts to prevent and combat trafficking and to protect, assist and
provide redress to victims.
2. States have a responsibility under international law to act with
due diligence to prevent trafficking, to investigate and prosecute
traffickers and to assist and protect trafficked persons.
3. Anti-trafficking measures shall not adversely affect the human
rights and dignity of persons, in particular the rights of those who
have been trafficked, and of migrants, internally displaced persons,
refugees and asylum-seekers.

Preventing trafficking
4. Strategies aimed at preventing trafficking shall address demand
as a root cause of trafficking.
5. States and intergovernmental organizations shall ensure that their
interventions address the factors that increase vulnerability to
trafficking, including inequality, poverty and all forms of
discrimination.
6. States shall exercise due diligence in identifying and eradicating
public-sector involvement or complicity in trafficking. All public
officials suspected of being implicated in trafficking shall be
investigated, tried and, if convicted, appropriately punished.

407
The term “trafficking”, as used in the present Principles and Guidelines, refers
to the recruitment, transportation, transfer, harboring or receipt of persons, by
means of the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent of a
person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labor or services, slavery or
practices similar to slavery, servitude or the removal of organs. Source: Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational
Organized Crime (article 3 (a)).

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 Protection and assistance
7. Trafficked persons shall not be detained, charged or prosecuted
for the illegality of their entry into or residence in countries of transit
and destination, or for their involvement in unlawful activities to the
extent that such involvement is a direct consequence of their situation
as trafficked persons.
8. States shall ensure that trafficked persons are protected from
further exploitation and harm and have access to adequate physical
and psychological care. Such protection and care shall not be made
conditional upon the capacity or willingness of the trafficked person
to cooperate in legal proceedings.
9. Legal and other assistance shall be provided to trafficked
persons for the duration of any criminal, civil or other actions against
suspected traffickers. States shall provide protection and temporary
residence permits to victims and witnesses during legal proceedings.
10. Children who are victims of trafficking shall be identified as
such. Their best interests shall be considered paramount at all times.
Child victims of trafficking shall be provided with appropriate
assistance and protection. Full account shall be taken of their special
vulnerabilities, rights and needs.
11. Safe (and, to the extent possible, voluntary) return shall be
guaranteed to trafficked persons by both the receiving State and the
State of origin. Trafficked persons shall be offered legal alternatives to
repatriation in cases where it is reasonable to conclude that such
repatriation would pose a serious risk to their safety and/or to the
safety of their families.

Criminalization, punishment and redress

12. States shall adopt appropriate legislative and other measures

necessary to establish, as criminal offences, trafficking, its component
acts408 and related conduct.409
13. States shall effectively investigate, prosecute and adjudicate
trafficking, including its component acts and related conduct, whether
committed by governmental or by non-State actors.

408
For the purposes of the present Principles and Guidelines, the “component acts”
and “component offences” of trafficking are understood to include the
recruitment, transportation, transfer, harboring or receipt of persons over
eighteen years of age by means of threat, force, coercion or deception for the
purpose of exploitation. The recruitment, transportation, transfer, harboring or
receipt of a person under eighteen years of age constitute component acts and
component offences of trafficking in children. Source: Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized
Crime, articles 3 (a) and 3 (c).
409
For the purposes of the present Principles and Guidelines, conduct and offences
“related to” trafficking are understood to include: exploitation of the prostitution
of others or other forms of sexual exploitation, forced labor or services, slavery
or practices similar to slavery and servitude. Source: Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized
Crime, article 3 (a).

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14. States shall ensure that trafficking, its component acts and
related offences constitute extraditable offences under national law
and extradition treaties. States shall cooperate to ensure that the
appropriate extradition procedures are followed in accordance with
international law.
15. Effective and proportionate sanctions shall be applied to
individuals and legal persons found guilty of trafficking or of its
component or related offences.
16. States shall, in appropriate cases, freeze and confiscate the assets
of individuals and legal persons involved in trafficking. To the extent
possible, confiscated assets shall be used to support and compensate
victims of trafficking.
17. States shall ensure that trafficked persons are given access to
effective and appropriate legal remedies.

Recommended Guidelines on Human Rights and

Human Trafficking
Guideline 1: Promotion and protection of human rights
Violations of human rights are both a cause and a consequence of trafficking in
persons. Accordingly, it is essential to place the protection of all human rights at the
centre of any measures taken to prevent and end trafficking. Anti-trafficking
measures should not adversely affect the human rights and dignity of persons and,
in particular, the rights of those who have been trafficked, migrants, internally
displaced persons, refugees and asylum-seekers.

States and, where applicable, intergovernmental and non-governmental

organizations, should consider:

1. Taking steps to ensure that measures adopted for the purpose of

preventing and combating trafficking in persons do not have an
adverse impact on the rights and dignity of persons, including those
who have been trafficked.
2. Consulting with judicial and legislative bodies, national human
rights institutions and relevant sectors of civil society in the
development, adoption, implementation and review of anti-trafficking
legislation, policies and programs.
3. Developing national plans of action to end trafficking. This
process should be used to build links and partnerships between
governmental institutions involved in combating trafficking and/or
assisting trafficked persons and relevant sectors of civil society.
4. Taking particular care to ensure that the issue of gender-based
discrimination is addressed systematically when anti-trafficking
measures are proposed with a view to ensuring that such measures are
not applied in a discriminatory manner.
5. Protecting the right of all persons to freedom of movement and
ensuring that anti-trafficking measures do not infringe upon this right.

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 6. Ensuring that anti-trafficking laws, policies, programs and
interventions do not affect the right of all persons, including trafficked
persons, to seek and enjoy asylum from persecution in accordance
with international refugee law, in particular through the effective
application of the principle of non-refoulement.
7. Establishing mechanisms to monitor the human rights impact of
anti-trafficking laws, policies, programs and interventions.
Consideration should be given to assigning this role to independent
national human rights institutions where such bodies exist. Non-
governmental organizations working with trafficked persons should be
encouraged to participate in monitoring and evaluating the human
rights impact of anti-trafficking measures.
8. Presenting detailed information concerning the measures that
they have taken to prevent and combat trafficking in their periodic
reports to the United Nations human rights treaty-monitoring
bodies.410
9. Ensuring that bilateral, regional and international cooperation
agreements and other laws and policies concerning trafficking in
persons do not affect the rights, obligations or responsibilities of
States under international law, including human rights law,
humanitarian law and refugee law.
10. Offering technical and financial assistance to States and relevant
sectors of civil society for the purpose of developing and
implementing human rights-based anti-trafficking strategies.

Guideline 2: Identification of trafficked persons and traffickers

Trafficking means much more than the organized movement of persons for profit.
The critical additional factor that distinguishes trafficking from migrant smuggling
is the presence of force, coercion and/or deception throughout or at some stage in
the process — such deception, force or coercion being used for the purpose of
exploitation. While the additional elements that distinguish trafficking from migrant
smuggling may sometimes be obvious, in many cases they are difficult to prove
without active investigation. A failure to identify a trafficked person correctly is
likely to result in a further denial of that person’s rights. States are therefore under
an obligation to ensure that such identification can and does take place.

States are also obliged to exercise due diligence in identifying traffickers,411

including those who are involved in controlling and exploiting trafficked persons.

410
The human rights treaty-monitoring bodies include the Human Rights
Committee; the Committee on Economic, Social and Cultural Rights; the
Committee on the Elimination of Discrimination against Women; the Committee
on the Elimination of Racial Discrimination; the Committee against Torture; and
the Committee on the Rights of the Child.
411
The term “traffickers”, where it appears in the present Principles and
Guidelines, is used to refer to: recruiters; transporters; those who exercise
control over trafficked persons; those who transfer and/or maintain trafficked
persons in exploitative situations; those involved in related crimes; and those
who profit either directly or indirectly from trafficking, its component acts and
related offences.

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 States and, where applicable, intergovernmental and non-governmental
organizations, should consider:

1. Developing guidelines and procedures for relevant State

authorities and officials such as police, border guards, immigration
officials and others involved in the detection, detention, reception and
processing of irregular migrants, to permit the rapid and accurate
identification of trafficked persons.
2. Providing appropriate training to relevant State authorities and
officials in the identification of trafficked persons and correct
application of the guidelines and procedures referred to above.
3. Ensuring cooperation between relevant authorities, officials and
non-governmental organizations to facilitate the identification and
provision of assistance to trafficked persons. The organization and
implementation of such cooperation should be formalized in order to
maximize its effectiveness.
4. Identifying appropriate points of intervention to ensure that
migrants and potential migrants are warned about possible dangers
and consequences of trafficking and receive information that enables
them to seek assistance if required.
5. Ensuring that trafficked persons are not prosecuted for violations
of immigration laws or for the activities they are involved in as a
direct consequence of their situation as trafficked persons.
6. Ensuring that trafficked persons are not, in any circumstances,
held in immigration detention or other forms of custody.
7. Ensuring that procedures and processes are in place for receipt
and consideration of asylum claims from both trafficked persons and
smuggled asylum seekers and that the principle of non-refoulement is
respected and upheld at all times.

Guideline 3: Research, analysis, evaluation and dissemination

Effective and realistic anti-trafficking strategies must be based on accurate and
current information, experience and analysis. It is essential that all parties involved
in developing and implementing these strategies have and maintain a clear
understanding of the issues.

The media has an important role to play in increasing public understanding of the
trafficking phenomenon by providing accurate information in accordance with
professional ethical standards.

States and, where appropriate, intergovernmental and non-governmental

organizations, should consider:

1. Adopting and consistently using the internationally agreed

definition of trafficking contained in the Palermo Protocol.412

412
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children (Palermo Protocol), supplementing the United Nations
Convention against Transnational Organized Crime, defines trafficking in

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2. Standardizing the collection of statistical information on
trafficking and related movements (such as migrant smuggling) that
may include a trafficking element.
3. Ensuring that data concerning individuals who are trafficked is
disaggregated on the basis of age, gender, ethnicity and other relevant
characteristics.
4. Undertaking, supporting and bringing together research into
trafficking. Such research should be firmly grounded in ethical
principles, including an understanding of the need not to re-traumatize
trafficked persons. Research methodologies and interpretative
techniques should be of the highest quality.
5. Monitoring and evaluating the relationship between the intention
of anti-trafficking laws, policies and interventions, and their real
impact. In particular, ensuring that distinctions are made between
measures which actually reduce trafficking and measures which may
have the effect of transferring the problem from one place or group to
another.
6. Recognizing the important contribution that survivors of
trafficking can, on a strictly voluntary basis, make to developing and
implementing anti-trafficking interventions and evaluating their
impact.
7. Recognizing the central role that non-governmental
organizations can play in improving the law enforcement response to
trafficking by providing relevant authorities with information on
trafficking incidents and patterns taking into account the need to
preserve the privacy of trafficked persons.

Guideline 4: Ensuring an adequate legal framework

The lack of specific and/or adequate legislation on trafficking at the national level
has been identified as one of the major obstacles in the fight against trafficking.
There is an urgent need to harmonize legal definitions, procedures and cooperation
at the national and regional levels in accordance with international standards. The
development of an appropriate legal framework that is consistent with relevant
international instruments and standards will also play an important role in the
prevention of trafficking and related exploitation.

States should consider:

persons as: “... the recruitment, transportation, transfer, harboring or receipt of

persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery or practices similar to slavery, servitude or the removal of
organs (article 3 (a)). The Protocol further states that the recruitment,
transportation, transfer, harboring or receipt of a child for the purpose of
exploitation shall be considered “trafficking in persons” even if this does not
involve any of the means set forth above (article 3 (c)).

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1. Amending or adopting national legislation in accordance with
international standards so that the crime of trafficking is precisely
defined in national law and detailed guidance is provided as to its
various punishable elements. All practices covered by the definition of
trafficking such as debt bondage, forced labor and enforced
prostitution should also be criminalized.
2. Enacting legislation to provide for the administrative, civil and,
where appropriate, criminal liability of legal persons for trafficking
offences in addition to the liability of natural persons. Reviewing
current laws, administrative controls and conditions relating to the
licensing and operation of businesses that may serve as cover for
trafficking such as marriage bureaux, employment agencies, travel
agencies, hotels and escort services.
3. Making legislative provision for effective and proportional
criminal penalties (including custodial penalties giving rise to
extradition in the case of individuals). Where appropriate, legislation
should provide for additional penalties to be applied to persons found
guilty of trafficking in aggravating circumstances, including offences
involving trafficking in children or offences committed or involving
complicity by State officials.
4. Making legislative provision for confiscation of the instruments
and proceeds of trafficking and related offences. Where possible, the
legislation should specify that the confiscated proceeds of trafficking
will be used for the benefit of victims of trafficking. Consideration
should be given to the establishment of a compensation fund for
victims of trafficking and the use of confiscated assets to finance such
a fund.
5. Ensuring that legislation prevents trafficked persons from being
prosecuted, detained or punished for the illegality of their entry or
residence or for the activities they are involved in as a direct
consequence of their situation as trafficked persons.
6. Ensuring that the protection of trafficked persons is built into
anti-trafficking legislation, including protection from summary
deportation or return where there are reasonable grounds to conclude
that such deportation or return would represent a significant security
risk to the trafficked person and/or her/his family.
7. Providing legislative protection for trafficked persons who
voluntarily agree to cooperate with law enforcement authorities,
including protection of their right to remain lawfully within the
country of destination for the duration of any legal proceedings.
8. Making effective provision for trafficked persons to be given
legal information and assistance in a language they understand as well
as appropriate social support sufficient to meet their immediate needs.
States should ensure that entitlement to such information, assistance
and immediate support is not discretionary but is available as a right
for all persons who have been identified as trafficked.
9. Ensuring that the right of trafficking victims to pursue civil
claims against alleged traffickers is enshrined in law.

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10. Guaranteeing that protections for witnesses are provided for in
law.
11. Making legislative provision for the punishment of public sector
involvement or complicity in trafficking and related exploitation.

Guideline 5: Ensuring an adequate law enforcement response

Although there is evidence to suggest that trafficking in persons is increasing in all
regions of the world, few traffickers have been apprehended. More effective law
enforcement will create a disincentive for traffickers and will therefore have a direct
impact upon demand.

An adequate law enforcement response to trafficking is dependent on the

cooperation of trafficked persons and other witnesses. In many cases, individuals
are reluctant or unable to report traffickers or to serve as witnesses because they
lack confidence in the police and the judicial system and/or because of the absence
of any effective protection mechanisms. These problems are compounded when law
enforcement officials are involved or complicit in trafficking. Strong measures need
to be taken to ensure that such involvement is investigated, prosecuted and
punished. Law enforcement officials must also be sensitized to the paramount
requirement of ensuring the safety of trafficked persons. This responsibility lies with
the investigator and cannot be abrogated.

States and, where applicable, intergovernmental and non-governmental

organizations should consider:

1. Sensitizing law enforcement authorities and officials to their

primary responsibility to ensure the safety and immediate well-being
of trafficked persons.
2. Ensuring that law enforcement personnel are provided with
adequate training in the investigation and prosecution of cases of
trafficking. This training should be sensitive to the needs of trafficked
persons, particularly those of women and children, and should
acknowledge the practical value of providing incentives for trafficked
persons and others to come forward to report traffickers. The
involvement of relevant non-governmental organizations in such
training should be considered as a means of increasing its relevance
and effectiveness.
3. Providing law enforcement authorities with adequate
investigative powers and techniques to enable effective investigation
and prosecution of suspected traffickers. States should encourage and
support the development of proactive investigatory procedures that
avoid over-reliance on victim testimony.
4. Establishing specialist anti-trafficking units (comprising both
women and men) in order to promote competence and
professionalism.
5. Guaranteeing that traffickers are and will remain the focus of
anti-trafficking strategies and that law enforcement efforts do not
place trafficked persons at risk of being punished for offences
committed as a consequence of their situation.

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6. Implementing measures to ensure that “rescue” operations do not
further harm the rights and dignity of trafficked persons. Such
operations should only take place once appropriate and adequate
procedures for responding to the needs of trafficked persons released
in this way have been put in place.
7. Sensitizing police, prosecutors, border, immigration and judicial
authorities, and social and public health workers to the problem of
trafficking and ensuring the provision of specialized training in
identifying trafficking cases, combating trafficking and protecting the
rights of victims.
8. Making appropriate efforts to protect individual trafficked
persons during the investigation and trial process and any subsequent
period when the safety of the trafficked person so requires.
Appropriate protection programs may include some or all of the
following elements: identification of a safe place in the country of
destination; access to independent 1egal counsel; protection of
identity during legal proceedings; identification of options for
continued stay, resettlement or repatriation.
9. Encouraging law enforcement authorities to work in partnership
with non-governmental agencies in order to ensure that trafficked
persons receive necessary support and assistance.

Guideline 6: Protection and support for trafficked persons

The trafficking cycle cannot be broken without attention to the rights and needs of
those who have been trafficked. Appropriate protection and support should be
extended to all trafficked persons without discrimination.

States and, where applicable, intergovernmental and non-governmental

organizations, should consider:

1. Ensuring, in cooperation with non-governmental organizations,

that safe and adequate shelter that meets the needs of trafficked
persons is made available. The provision of such shelter should not be
made contingent on the willingness of the victims to give evidence in
criminal proceedings. Trafficked persons should not be held in
immigration detention centres, other detention facilities or vagrant
houses.
2. Ensuring, in partnership with non-governmental organizations,
that trafficked persons are given access to primary health care and
counseling. Trafficked persons should not be required to accept any
such support and assistance and they should not be subject to
mandatory testing for diseases, including HIV/AIDS.
3. Ensuring that trafficked persons are informed of their right of
access to diplomatic and consular representatives from their State of
nationality. Staff working in embassies and consulates should be
provided with appropriate training in responding to requests for
information and assistance from trafficked persons. These provisions
would not apply to trafficked asylum-seekers.

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4. Ensuring that legal proceedings in which trafficked persons are
involved are not prejudicial to their rights, dignity or physical or
psychological well-being.
5. Providing trafficked persons with legal and other assistance in
relation to any criminal, civil or other actions against
traffickers/exploiters. Victims should be provided with information in
a language that they understand.
6. Ensuring that trafficked persons are effectively protected from
harm, threats or intimidation by traffickers and associated persons. To
this end, there should be no public disclosure of the identity of
trafficking victims and their privacy should be respected and protected
to the extent possible, while taking into account the right of any
accused person to a fair trial. Trafficked persons should be given full
warning, in advance, of the difficulties inherent in protecting identities
and should not be given false or unrealistic expectations regarding the
capacities of law enforcement agencies in this regard.
7. Ensuring the safe and, where possible, voluntary return of
trafficked persons and exploring the option of residency in the country
of destination or third-country resettlement in specific circumstances
(e.g. to prevent reprisals or in cases where re-trafficking is considered
likely).
8. In partnership with non-governmental organizations, ensuring
that trafficked persons who do return to their country of origin are
provided with the assistance and support necessary to ensure their
well-being, facilitate their social integration and prevent re-
trafficking. Measures should be taken to ensure the provision of
appropriate physical and psychological health care, housing and
educational and employment services for returned trafficking victims.

Guideline 7: Preventing trafficking

Strategies aimed at preventing trafficking should take into account demand as a
root cause. States and intergovernmental organizations should also take into
account the factors that increase vulnerability to trafficking, including inequality,
poverty and all forms of discrimination and prejudice. Effective prevention
strategies should be based on existing experience and accurate information.

States, in partnership with intergovernmental and non-governmental organizations

and where appropriate, using development cooperation policies and programs,
should consider:

1. Analyzing the factors that generate demand for exploitative

commercial sexual services and exploitative labor and taking strong
legislative, policy and other measures to address these issues.
2. Developing programs that offer livelihood options, including
basic education, skills training and literacy, especially for women and
other traditionally disadvantaged groups.
3. Improving children’s access to educational opportunities and
increasing the level of school attendance, in particular by girl
children.

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4. Ensuring that potential migrants, especially women, are properly
informed about the risks of migration (e.g. exploitation, debt bondage
and health and security issues, including exposure to HIV/AIDS) as
well as avenues available for legal, non-exploitative migration.
5. Developing information campaigns for the general public aimed
at promoting awareness of the dangers associated with trafficking.
Such campaigns should be informed by an understanding of the
complexities surrounding trafficking and of the reasons why
individuals may make potentially dangerous migration decisions.
6. Reviewing and modifying policies that may compel people to
resort to irregular and vulnerable labor migration. This process should
include examining the effect on women of repressive and/or
discriminatory nationality, property, immigration, emigration and
migrant labor laws.
7. Examining ways of increasing opportunities for legal, gainful
and non-exploitative labor migration. The promotion of labor
migration by the State should be dependent on the existence of
regulatory and supervisory mechanisms to protect the rights of
migrant workers.
8. Strengthening the capacity of law enforcement agencies to arrest
and prosecute those involved in trafficking as a preventive measure.
This includes ensuring that law enforcement agencies comply with
their legal obligations.
9. Adopting measures to reduce vulnerability by ensuring that
appropriate legal documentation for birth, citizenship and marriage is
provided and made available to all persons.

Guideline 8: Special measures for the protection and support of child

victims of trafficking
The particular physical, psychological and psychosocial harm suffered by trafficked
children and their increased vulnerability to exploitation require that they be dealt
with separately from adult trafficked persons in terms of laws, policies, programs
and interventions. The best interests of the child must be a primary consideration in
all actions concerning trafficked children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or legislative
bodies. Child victims of trafficking should be provided with appropriate assistance
and protection and full account should be taken of their special rights and needs.

States and, where applicable, intergovernmental and non-governmental

organizations, should consider, in addition to the measures outlined under Guideline
6:

1. Ensuring that definitions of trafficking in children in both law

and policy reflect their need for special safeguards and care, including
appropriate legal protection. In particular, and in accordance with the
Palermo Protocol, evidence of deception, force, coercion, etc. should
not form part of the definition of trafficking where the person
involved is a child.

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2. Ensuring that procedures are in place for the rapid identification
of child victims of trafficking.
3. Ensuring that children who are victims of trafficking are not
subjected to criminal procedures or sanctions for offences related to
their situation as trafficked persons.
4. In cases where children are not accompanied by relatives or
guardians, taking steps to identify and locate family members.
Following a risk assessment and consultation with the child, measures
should be taken to facilitate the reunion of trafficked children with
their families where this is deemed to be in their best interest.
5. In situations where the safe return of the child to his or her
family is not possible, or where such return would not be in the child’s
best interests, establishing adequate care arrangements that respect the
rights and dignity of the trafficked child.
6. In both the situations referred to in the two paragraphs above,
ensuring that a child who is capable of forming his or her own views
enjoys the right to express those views freely in all matters affecting
him or her, in particular concerning decisions about his or her possible
return to the family, the views of the child being given due weight in
accordance with his or her age and maturity.
7. Adopting specialized policies and programs to protect and
support children who have been victims of trafficking. Children
should be provided with appropriate physical, psychosocial, legal,
educational, housing and health-care assistance.
8. Adopting measures necessary to protect the rights and interests
of trafficked children at all stages of criminal proceedings against
alleged offenders and during procedures for obtaining compensation.
9. Protecting, as appropriate, the privacy and identity of child
victims and taking measures to avoid the dissemination of information
that could lead to their identification.
10. Taking measures to ensure adequate and appropriate training, in
particular legal and psychological training, for persons working with
child victims of trafficking.

Guideline 9: Access to remedies

Trafficked persons, as victims of human rights violations, have an international
legal right to adequate and appropriate remedies. This right is often not effectively
available to trafficked persons as they frequently lack information on the
possibilities and processes for obtaining remedies, including compensation, for
trafficking and related exploitation. In order to overcome this problem, legal and
other material assistance should be provided to trafficked persons to enable them to
realize their right to adequate and appropriate remedies.

States and, where applicable, intergovernmental and non-governmental

organizations, should consider:

1. Ensuring that victims of trafficking have an enforceable right to

fair and adequate remedies, including the means for as full a

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rehabilitation as possible. These remedies may be criminal, civil or
administrative in nature.
2. Providing information as well as legal and other assistance to
enable trafficked persons to access remedies. The procedures for
obtaining remedies should be clearly explained in a language that the
trafficked person understands.
3. Making arrangements to enable trafficked persons to remain
safely in the country in which the remedy is being sought for the
duration of any criminal, civil or administrative proceedings.

Guideline 10: Obligations of peacekeepers, civilian police and

humanitarian and diplomatic personnel
The direct or indirect involvement of peacekeeping, peace-building, civilian policing,
humanitarian and diplomatic personnel in trafficking raises special concerns. States,
intergovernmental and non-governmental organizations are responsible for the
actions of those working under their authority and are therefore under an
obligation to take effective measures to prevent their nationals and employees from
engaging in trafficking and related exploitation. They are also required to
investigate thoroughly all allegations of trafficking and related exploitation and to
provide for and apply appropriate sanctions to personnel found to have been
involved in trafficking.

States and, where appropriate, intergovernmental and non-governmental

organizations, should consider:

1. Ensuring that pre- and post-deployment training programs for all

peacekeeping, peace-building, civilian policing, humanitarian and
diplomatic staff adequately address the issue of trafficking and clearly
set out the expected standard of behavior. This training should be
developed within a human rights framework and delivered by
appropriately experienced trainers.
2. Ensuring that recruitment, placement and transfer procedures
(including those of private contractors and sub-contractors) are
rigorous and transparent.
3. Ensuring that staff employed in the context of peacekeeping,
peace-building, civilian policing, humanitarian and diplomatic
missions do not engage in trafficking and related exploitation or use
the services of persons in relation to which there are reasonable
grounds to suspect they may have been trafficked. This obligation also
covers complicity in trafficking through corruption or affiliation with
any person or group of persons who could reasonably be suspected of
engaging in trafficking and related exploitation.
4. Developing and adopting specific regulations and codes of
conduct setting out expected standards of behavior and the
consequences of failure to adhere to these standards.
5. Requiring all personnel employed in the context of
peacekeeping, peace-building, civilian policing, humanitarian and
diplomatic missions to report on any instances of trafficking and
related exploitation that come to their attention.

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6. Establishing mechanisms for the systematic investigation of all
allegations of trafficking and related exploitation involving personnel
employed in the context of peacekeeping, peace-building, civilian
policing, humanitarian and diplomatic missions.
7. Consistently applying appropriate criminal, civil and
administrative sanctions to personnel shown to have engaged in or
been complicit in trafficking and related exploitation.
Intergovernmental and non-governmental organizations should, in
appropriate cases, apply disciplinary sanctions to staff members found
to be involved in trafficking and related exploitation in addition to and
independently of any criminal or other sanctions decided on by the
State concerned. Privileges and immunities attached to the status of an
employee should not be invoked in order to shield that person from
sanctions for serious crimes such as trafficking and related offences.

Guideline 11: Cooperation and coordination between States and

regions
Trafficking is a regional and global phenomenon that cannot always be dealt with
effectively at the national level: a strengthened national response can often result in
the operations of traffickers moving elsewhere. International, multilateral and
bilateral cooperation can play an important role in combating trafficking activities.
Such cooperation is particularly critical between countries involved in different
stages of the trafficking cycle.

States and, where applicable, intergovernmental and non-governmental

organizations, should consider:

1. Adopting bilateral agreements aimed at preventing trafficking,

protecting the rights and dignity of trafficked persons and promoting
their welfare.
2. Offering, either on a bilateral basis or through multilateral
organizations, technical and financial assistance to States and relevant
sectors of civil society for the purpose of promoting the development
and implementation of human rights-based anti-trafficking strategies.
3. Elaborating regional and subregional treaties on trafficking,
using the Palermo Protocol and relevant international human rights
standards as a baseline and framework.
4. Adopting labor migration agreements, which may include
provision for minimum work standards, model contracts, modes of
repatriation, etc., in accordance with existing international standards.
States are encouraged effectively to enforce all such agreements in
order to help eliminate trafficking and related exploitation.
5. Developing cooperation arrangements to facilitate the rapid
identification of trafficked persons including the sharing and exchange
of information in relation to their nationality and right of residence.
6. Establishing mechanisms to facilitate the exchange of
information concerning traffickers and their methods of operation.
7. Developing procedures and protocols for the conduct of
proactive joint investigations by law enforcement authorities of

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different concerned States. In recognition of the value of direct
contacts, provision should be made for direct transmission of requests
for assistance between locally competent authorities in order to ensure
that such requests are rapidly dealt with and to foster the development
of cooperative relations at the working level.
8. Ensuring judicial cooperation between States in investigations
and judicial processes relating to trafficking and related offences, in
particular through common prosecution methodologies and joint
investigations. This cooperation should include assistance in:
identifying and interviewing witnesses with due regard for their
safety; identifying, obtaining and preserving evidence; producing and
serving the legal documents necessary to secure evidence and
witnesses; and the enforcement of judgements.
9. Ensuring that requests for extradition for offences related to
trafficking are dealt with by the authorities of the requested State
without undue delay.
10. Establishing cooperative mechanisms for the confiscation of the
proceeds of trafficking. This cooperation should include the provision
of assistance in identifying, tracing, freezing and confiscating assets
connected to trafficking and related exploitation.
11. Exchanging information and experience relating to the
implementation of assistance, return and integration programs with a
view to maximizing impact and effectiveness.
12. Encouraging and facilitating cooperation between non-governmental organizations and
other civil society organizations in countries of origin, transit and destination. This is
particularly important to ensure support and assistance to trafficked persons who are
repatriated.

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