Definitions of Trafficking

Review of UN Protocol compiled from Global Alliance Against Trafficking in Women



I. from UN Protocol To Prevent, Suppress and Punish Trafficking in persons, Especially Women and Children


The definition of trafficking in the Protocol is the first international definition of trafficking.

"(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 [interpretative note (63)] 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 [interpretative note (64)], forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;"

Interpretative note (63): "The travaux preparatoires should 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 note (64): "The travaux preparatoires should indicate that the Protocol addresses the exploitation of prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms 'exploitation of the prostitution of others' or 'other forms of sexual exploitation' are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws."

"(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 [interpretative note (68)];"

Interpretative note (68): "The travaux preparatoires should indicate that Subparagraph (b) should not be interpreted as imposing any restriction on the right of accused persons to a full defence and to the presumption of Innocence. They should also indicate that it should not be interpreted as imposing on the victim the burden of proof. As in any criminal case, the burden of proof is on the State or public prosecutor, in accordance with domestic law[...]."

Commentary on Definition of Trafficking in the UN Protocol
from the Global Alliance Against Trafficking in Women

The Trafficking Protocol contains the first international definition of 'trafficking in persons'. It takes a different approach to trafficking from that contained in the 1949 Convention, which focused only on prostitution and considered all prostitution, voluntary and forced, to be trafficking.

The Protocol recognises the existence of voluntary prostitution and forced prostitution. It intentionally does not define the phrase "exploitation of prostitution of others or other forms of sexual exploitation" because government delegates to the negotiations could not agree on a common meaning. All delegates agreed that involuntary forced participation in prostitution would constitute trafficking, but the majority of governments rejected the idea that voluntary, non-coercive participation by adults in prostitution constitutes trafficking.

In order to ensure the greatest number of signatories to the Protocol, delegates agreed to leave the phrase undefined and add the following explanation: "The travaux preparatoires should indicate that the Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms 'exploitation of the prostitution of others' or 'other forms of sexual exploitation' are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws."

Thus, the Trafficking Protocol expressly permits states to focus only on forced prostitution and other crimes involving force or coercion and does not require governments to treat all adult participation in prostitution as trafficking. Governments that want to focus on crimes involving force or coercion in prostitution and other forms of labour do not even need to include the phrase "exploitation of prostitution of others or other forms of sexual exploitation" in their domestic law. The terms "forced labour or services, slavery or practices similar to slavery, servitude" will cover all situations including forced participation in the sex industry.

Furthermore, forced labour, slavery and servitude are defined in international law and those definitions can be incorporated into domestic legislation. As "exploitation of prostitution of others or other forms of sexual exploitation" are not defined in international law, governments would have to develop clear definitions for their criminal codes. If they do not define the phrase or define it unclearly, then convictions will be difficult because prosecutors will not know what they have to prove. Clear criminal law definitions are essential to the rule of law and the rights of the defendant.


Definition of Sexual Exploitation
from the Global Alliance Against Trafficking in Women

If a government insists on using language such as 'sexual exploitation', we should encourage them to use the following definition so that sexual exploitation, like any other form of labour exploitation, requires the use of force or coercion etc.: "'sexual exploitation' means the participation by a person in prostitution, sexual servitude, or the production of pornographic materials as a result of being subjected to a threat, deception, coercion, abduction, force, abuse of authority, debt bondage or fraud. Even in the absence of any of these factors, where the person participating in prostitution, sexual servitude or the production of pornographic materials in under the age of 18, sexual exploitation shall be deemed to exist."
*

* (TPRP Editor's note: The implication of support for inclusion of all youth involvement in survival sex and casual forms of sex trade as forms of trafficking, is an older recommendation and does not necessarily reflect current thinking. U.S. human rights organizations are developing recomendations which take into consideration harms to young people as a result of such policies and as well as solutions.)