Module 3

MODULE 3
HUMAN TRAFFICKING- THE INTERNATIONAL APPROACH

3.1 INRODUCTION

Trafficking in persons is a serious crime and a grave violation of human rights, which threatens
national security and undermines sustainable development and the rule of law. Trafficking in
persons was recognised and codified as early as 1910 by the adoption of the International
Agreement for the suppression of the White Slave Traffic.

Human Trafficking is the recruitment, transportation, transfer, harbouring or receipt of people
through force, fraud or deception, with the aim of exploiting them for profit. Men, women and
children of all ages and from all backgrounds can become victims of this crime, which occurs
in every region of the world. The traffickers often use violence or fraudulent employment
agencies and fake promises of education and job opportunities to trick and coerce their
victims.1

The crime of human trafficking consists of three elements2-
1. The act
2. The means
3. The purpose

The traffickers use physical and sexual abuse, blackmail, emotional manipulation and the
removal of official documents as means to control their victims. Human trafficking may take
many forms, these may include-

• Exploitation in the sex industry
• Exploitation in the entertainment and hospitality industries
• Exploitation as domestic workers
• Exploitation in forced marriages
• Exploitation as workers without pay or with an inadequate salary
• Exploitation in illegal organ trade

1 https://www.unodc.org/unodc/en/human-Trafficking/Human-Trafficking.html.
2 https://www.unodc.org/unodc/en/human-trafficking/crime.html.

• Exploitation of children by engaging them in criminal activities

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons is one of the most
important international instrument to combat human trafficking. It was adopted by the United
Nations in 2000 as part of the UN Convention against Transnational Organized Crime. It is the
first legally binding instrument with an internationally recognized definition of human
trafficking. This definition helps in the identification of the victims, whether men, women or
children, and also identifies all forms of exploitation which constitute human trafficking.

Another important instrument is The International Covenant on Civil and Political Rights
(ICCPR), which prohibits a number of practices directly related to trafficking, including
slavery, the slave trade, servitude and forced labour.

In this module, we will discuss the historical background of international position on human
trafficking and the legal development. We will also take a brief look at the recent developments in
this regard. The historical development will be discussed to appreciate and understand the evolution
of international law governing trafficking in person.

3.2 HISTORICAL BACKGROUND

The term “trafficking” was not defined in international law till the year 2000 despite its
incorporation in a number of international instruments. There was a disagreement and failure
to develop a consensus on the ultimate end result of trafficking, differences between trafficking
and related issues such as illegal migration and migrant smuggling. Beginning from the late
1990s, strong efforts were made to deconstruct understanding about trafficking to develop and
agreed upon international definition.

Human trafficking has a chequered legal and political history. “Trafficking” as it relates to
human beings came into international use in the early 20th century. This was in its connection
with white slavery. The first convention against white slavery was adopted in the year 1904
which sought to suppress the trafficking of women or girls for immoral purposes. In 1910,
another instrument was adopted, called the International Convention for the Suppression of the

White Slave Traffic3. Subsequent international agreements have been adopted on the point. In
1921, the League of Nations adopted the Suppression of the Traffic in Women and Children
and the Suppression of the Traffic in Women of Full Age in 1933. Trafficking was not defined
in these instruments, but they were uniformly concerned with the organized movement of
women and girls for the purposes of prostitution.

In 1949, the United Nations adopted the Convention for the Suppression of Traffic in Persons
and the Exploitation of the Prostitution of Others. There is no particular definition of trafficking
in the 1949 convention. It is a broad convention which refers to prostitution and the
accompanying evil of the traffic in persons for the purposes of prostitution. The 1949
Convention is limited to trafficking for prostitution and applies to both men and women.

In 1979, the General Assembly of the United Nations adopted the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), which 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 women”. CEDAW highlights not only trafficking
and prostitution, but also focusses on underlying causes.

The Convention on the Rights of the Child (CRC), adopted by the General Assembly in 1989,
is another important international human rights treaty apart from the CEDAW Convention to
refer explicitly to trafficking.

In the late 1980s and early 1990s, specific debates arose relating to prostitution and the
inadequacies of the current international legal framework to prevent the sexual exploitation of
women. Cross-border exploitation of women was highlighted. It was around late 1990s that
empirical links between trafficking and broader migration flows, including refugee
movements, began to be acknowledged.

The early focus on prostitution did not prevent attempts to broaden the scope of the campaign
against white slavery to include exploitation of women’s labour in all sectors. The 1990s
marked a shift in the international legal framework around trafficking as the issue began to be
considered from perspectives other than human rights. In 2000, the Protocol to Prevent,

3 White Slavery Convention, 2010.

Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking
Protocol) was adopted. It is a protocol to the UN Convention against Transnational Organized
Crime. There was growing awareness of newer threats of migrant smuggling and transnational
organized crime. This understanding was reflected in the Conference of Parties to the United
Nations Convention on Transnational organized Crime, Decision on “Trafficking in Human
Beings” in 2008.

The UN General Assembly was at the forefront of early definitional struggles. In 1994, in a
resolution on trafficking, it referred to:

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 labour, false marriage, clandestine employment and forced
adoption.4

In 1995, in a report to the General Assembly, the relationship between trafficking and illegal
migration was discussed as follows:

Trafficking across international borders is by definition illegal ... The question must be
asked however, whether trafficking is the same as illegal migration. It would seem that
the two are related but different. Migration across frontiers without documentation does
not have to be coercive or exploitative. At the same time, persons can be trafficked with
their consent. A distinction could be made in terms of the purpose for which borders
are crossed and whether movement occurs through the instrumentality of another
person. Under this distinction, trafficking of women and girls would be defined in terms
of “the end goal of forcing women and girl children into sexually or economically
oppressive and exploitative situations” and the fact that it is done “for the profit of
recruiters, traffickers and crime syndicates…5

4 UN General Assembly, “Traffic in Women and Girls,” UN Doc. A/RES/49/166, Dec. 23, 1994.
5 UN General Assembly, “Traffic in Women and Girls: Report of the Secretary-General,” UN Doc. A/50/369,
Aug. 24, 1995.

The principal intergovernmental organization for migration matters is the International
Organization for Migration (IOM). The IOM began working in the issue of trafficking in the
early 1990s. By 1996, the term “trafficking in women” was used to cover any illicit transporting
of migrant women and/or trade in them for economic or other personal gain.

The first-ever agreed definition of trafficking was incorporated into the 2000 Trafficking
Protocol. It defines “trafficking in persons” as-

(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer,
harbouring 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 labour or services, slavery or practices similar to slavery, servitude or the
removal of organs; (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.

Apart from the ones already discussed earlier, some of the other important international
instruments are listed down as follows-

1. ILO Forced Labour Convention, 1930
2. ILO Abolition of Forced Labour Convention, 1957
3. The Convention on the Elimination of All Forms of Discrimination against Women,

1979
4. The Convention on the Rights of the Child, 1989
5. the International Convention on the Protection of the Rights of All Migrant Workers

and Members of their Families, 1990
6. the ILO’s Worst Forms of Child Labour Convention, 1999
7. The Optional Protocol on the Sale of Children, Child Prostitution, and Child

Pornography, 2000
8. Palermo Protocols, 2000

3.3 IMPORTANT RECENT DEVELOPMENTS

In the year 2006, the Government of Japan hosted a coordination meeting of international
organizations working to counter trafficking in persons. Important organizations such as
International Labour Organization (ILO), International Organization for Migration (IOM), UN
International Children’s Emergency Fund (UNICEF), UN Women, UN High Commissioner
for Refugees (UNHCR) and UN Office on Drugs and Crime (UNODC) participated in the
meeting at the request of the Economic and Social Council (ECOSOC). Resultantly, the Inter-
Agency Coordination Group Against Human Trafficking (ICAT) was formally established in
2007.

Later, in 2010, the General Assembly adopted the Global Plan of Action to Combat Trafficking
in Persons. The Plan has led to the establishment of a UN Voluntary Trust Fund for victims of
trafficking. In 2013, the General Assembly held a high-level meeting to appraise the Global
Plan of Action. July 30 was held as the World Day against Trafficking in Persons. It was
declared that such a day was necessary to “raise awareness of the situation of victims of human
trafficking and for the promotion and protection of their rights.”

In 2015, the 2030 Sustainable Development Agenda was adopted. The goals contained therein target
trafficking in persons and calls for an end to trafficking and violence against children and elimination
of all forms of violence against women and girls. The UN Summit for Refugees and Migrants led
to the adoption of the New York Declaration for Refugees and Migrants in 2016. It has paved the
way for the adoption of two new global compacts in 2018: a global compact on refugees and a
global compact for safe, orderly and regular migration.

3.4 TRAFFICKING AND OTHER RELATED ASPECTS

The victim-centred approach is gathering increased support from the international community.
Human rights are important in the new understanding and there is now widespread acceptance
of the need for a human rights-based approach to trafficking. Fight against trafficking is
inherently linked to human rights. Human rights unequivocally proclaims the fundamental
immorality and unlawfulness of one person appropriating the legal personality, labour or
humanity of another.

Trafficking can be considered as a direct violation of human rights. Most of the practices
associated with modern-day trafficking are clearly prohibited under international human rights

law. The human rights of trafficked persons need to be respected with the same vigour as the
rights of nationals. Trafficked persons cannot be discriminated against simply because they are
non-nationals. A human rights-based approach is also an important part of the robust anti-
trafficking regime. Under a human rights-based approach, every aspect of the national, regional
and international response to trafficking is anchored in the rights and obligations established
by international human rights law.

Trafficking victims almost always commit crimes from the use of illegal identity papers, to
criminal acts forced upon them by their traffickers. The victims of trafficking should be
protected from prosecution or punishment for criminal activities such as the use of false
documents or offences under legislation on prostitution or immigration. The aim of such
protection is to protect the human rights of victims and to ensure that no further victimisation
is done by the State machinery.

3.5 CONCLUSION

The discussion of the international position on human trafficking has highlighted the need for proper
collaboration between different state parties. It is imperative that changes in the international law
are reflected in the domestic regime. The changes must also translate into a properly coordinated
system with adequate focus on the human rights of the victims of such crime, especially women and
children.

The first step to preventing human trafficking and prosecuting the traffickers is to recognize the
complexity of the crime which cannot be tackled in a vacuum. Measures to counter trafficking have
to be embedded in every policy area, from improving female literacy to increasing police pay so that
officers are less susceptible to bribery. It is also important to adopt a human rights-based approach
to address human trafficking. This will facilitate equal attention to prevention, protection and
protection. A victim-centred approach will require sturdy collaboration between various players
such as legislators, prosecutors, law enforcement and other victim advocates.