The concept of trafficking in women

In international human rights law there is only one explicit definition of the concept of trafficking in persons, that is, in the 2000 Protocol to the Convention on Combating Organised Crime. Even if the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others does not explicitly define the concept, the Convention enumerates acts which are prohibited under the Convention, thereby indirectly defining the concept. According to Article 1, state parties agree to punish any person who, “to gratify the passion of another:

1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person;

2) Exploits the prostitution of another person, even with the consent of that person”.

In accordance with the much more elaborated definition of the 2000 Protocol, the concept of “trafficking in persons” means:

“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

148 Jo Doezema, “Forced to Choose. Beyond the Voluntary v. Forced Prostitution Dichotomy”, in: Kamala

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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 or organs”. (Article 3).

In an effort to clarify the complex concept of trafficking in persons, it seems meaningful to approach it from the perspective of the definition adopted in the 2000 Protocol. It is possible to identify three separate elements of the definition: 1) the action of trafficking, 2) the means whereby trafficking is realised and 3) the purpose of trafficking. In order for trafficking to take place all these elements have to be fulfilled.¹⁴⁹

The first element defining the action contains an enumeration of different stages of the trafficking process (recruitment, transportation, transfer, harbouring or receipt of person), thereby covering the activities of a range of persons profiting from the trafficking. The second element refers to the requirement of coercion in the trafficking process. This requirement is fairly broad not only covering the use of force, but also other milder forms of coercion like “threat of force”, “deception” and “abuse of power or position of vulnerability”. In real life situations it is very often the case that the trafficker gives false or misleading information about the type of work or working conditions at the place of destination. The final element of the definition is crucial for the whole concept of trafficking. An action amounts to trafficking only if it is carried out for an exploitative purpose. This element of exploitation distinguishes trafficking from smuggling.

Smuggling is mainly concerned with profiting from transporting persons across national borders. There is no specific end purpose of smuggling apart from the transportation.

Another difference between trafficking and smuggling is that smuggling always involves border crossings, whereas trafficking does not necessarily require this, but may also apply on situations where women are moved within a country, e.g. from rural areas to urban centres or tourist resorts. Despite this seemingly unambiguous distinction between trafficking and smuggling, it is clear that the application of this distinction on real life situations might be problematic. A state might be tempted to define an individual as a Kempadoo & Jo Doezema (eds), Global Sex Workers. Rights, Resistance, and Redefinition, 1998, p. 35.

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smuggled migrant rather than as a trafficked person, because the state obligations of protection are broader in the latter case.¹⁵⁰

If compared with the 1949 Convention the definition of the 2000 Protocol is both broader and narrower. It is narrower in the sense that it only focuses on exploitative purposes of trafficking, including prostitution, whereas the purpose of the trafficking in the 1949 Convention includes any form of prostitution. This is a reflection of the abolitionist approach to prostitution contained in the 1949 Convention. In accordance with the preamble of the Convention, “prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person”. In other words, the 1949 Convention can be interpreted as defining all forms of prostitution as exploitative irrespective of whether it takes place voluntarily or not.

However, the definition of the 2000 Protocol is clearly broader than the earlier Convention by its focus on also other purposes of trafficking than prostitution. The inclusion of an open-ended list of several exploitative purposes was the result of active lobbying by NGOs and various UN agencies.¹⁵¹ For example, the UN Special Rapporteur on Violence against Women has strongly advocated for the expansion of the concept of trafficking.¹⁵² It is clear that this broader approach to trafficking is highly warranted taking into account the real life experiences of many trafficked women who end up in forced marriages or manufacturing industries where the working conditions are slavery-like.

Before going into the question how the various human rights bodies have approached trafficking it is necessary to briefly look at the highly debated question of consent. The approach in the 1949 Convention clearly emphasises in the text of the treaty that the consent of the person who is trafficked is irrelevant for determining whether trafficking has taken place or not. This is interesting taking into account the fact that the 1949

149 Anne Gallagher, supra note 143, p. 986f.

150 See UN doc. E/CN.4/Sub.2/2001/26 (5 July 2001), para. 7.

151 Anne Gallagher, supra note 143, p. 1003.

152 UN doc. E/CN.4/2000/68 (29 February 2000), paras 10-17. See also Informal Note by the United Nations High Commissioner for Human Rights, UN doc. A/AC.254/16 (1 June 1999), para. 12.

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Convention lacks the exploitative requirement thereby encompassing all persons who are lead away, perhaps with their own consent, into any form of prostitution.

The 2000 Protocol is also concerned with the question of consent. Article 3.b stipulates that:

“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”

Subparagraph (a) refers to the provision concerning the definition of trafficking in persons.

The obvious aim of this provision is to guarantee that a trafficker cannot use the consent of the trafficked woman as a defence against conviction.¹⁵³ Nevertheless, critical views have been put forward against the inclusion of the reference to consent. Some argue that trafficking always include an element of coercion and can never take place with the full consent of the woman.¹⁵⁴ From a completely different point of view, others argue that by stipulating that the consent is irrelevant women are portrayed “as perennial victims of false consciousness, incapable of making autonomous choices regarding their means of migration and employment”.¹⁵⁵