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