Trafficking is defined by three elements: (1) action: recruitment, transportation, transfer, harbouring or receiot of persons. (2) Means: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another.(3) Purpose: Exploitation ( including 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, sevitude or the removal of organs.
International law provides a different difinition for trafficking in chlidren ( i.e persons under eighteen years of age) , the means element is not a required element, but only the two elements of action and purpose.
by its methods, which relates to the] moving of a person; (2) [THIS PART SHOULD BE CUT - IT MAKES EXTREMELY CONFUSING AND WITH THIS QUALIFICATION IT DOES NOT PROVIDE DEFINITION OF ELEMENTS by its means, such as] through the use of coercion or deception; and (3) [THIS PART SHOULD BE CUT - IT MAKES EXTREMELY CONFUSING AND WITH THIS QUALIFICATION IT DOES NOT PROVIDE DEFINITION OF ELEMENTS by its purpose, which is] FOR THE PURPOSE OF the exploitation of person. Such exploitation includes the exploitation of prostitutes and other forms of sexual exploitation, forced labour, slavery, servitude, and the removal of organs. States have a duty to (1) prevent trafficking, (2) protect victims and (3) punish traffickers.
Comprehensive: The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) defines trafficking in article 3 as: [1]
' Trafficking in Persons' shall mean the recruitment, transportation, transfer, harbouring or reciept 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 vulverability or of the giving oe receiving of payments oe 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 sevicess, slavery or practices similar to slavery, sevitude or the removal of organs.
Important features of the definitions:
The following are key features of the new international legal understanding about trafficking:
Trafficking affects women, men and children and involves a range of exploitative practices: Trafficking was traditionally associated with the movement of women and girls into sexual exploitation. The international legal definition set out above makes clear that men and women, boys and girls can all be trafficked - and that the range of potentially exploitative practices linked to trafficking is very wide. The list of examples set out in the definition is an open-ended one and it is possible that new or additional exploitative purposes will be identified in the future.
Trafficking does not require the crossing of an international border: The definition covers internal as well as cross-border trafficking. That is, it is legally possible for trafficking to take place within a single country, including the victim’s own.
Trafficking is not the same as migrant smuggling: Migrant smuggling involves the illegal, facilitated movement across an international border for profit. While it may involve deception and / or abusive treatment, the purpose of migrant smuggling is to profit from the movement, not the eventual exploitation as in the case of trafficking.
Trafficking does not always require movement: The definition of trafficking identifies movement as just one possible way that the “action” element can be satisfied. Terms such as “receipt” and “harbouring” mean that trafficking does not just refer to the process whereby someone is moved into situations of exploitation, it also extends to the maintenance of that person in a situation of exploitation.
It is not possible to “consent” to trafficking: International human rights law has always recognized that intrinsic inalienability of personal freedom renders consent irrelevant to a situation in which that personal freedom is taken away. This understanding is reflected in the “means” element of the definition of trafficking. As noted by the drafters of the Trafficking Protocol, “[o]nce it is established that deception, force or other prohibited means were used, consent is irrelevant and cannot be used as a defence.”[i]
II. What is the relationship between human rights and human trafficking?
The connection between human rights and trafficking is very strong. From its earliest days to the present, human rights law has loudly proclaimed the fundamental immorality and unlawfulness of one person appropriating the legal personality, labor, or humanity of another. Human rights law has prohibited discrimination on the basis of race and sex; it has demanded equal or at least certain key rights for aliens; it has decried and outlawed arbitrary detention, forced labor, debt bondage, forced marriage, and the commercial sexual exploitation of children and women; and it has championed freedom of movement and the right to leave and return to one’s own country. There can be no doubt that the spirit and substance of human rights law rejects the practices and results that are integral to the human trafficking process. Different human rights will be relevant at different points in the trafficking cycle. Some rights will be especially relevant to the causes of trafficking (for example, the right to an adequate standard of living); others to the actual process of trafficking (for example, the right to be free from slavery); and still others to the response to trafficking (for example, the right of suspects to a fair trial). Some rights are broadly applicable to each of these aspects. The text box below sets out the rights most relevant to trafficking. Key aspects of these rights and their application in the context of trafficking are explored at different points in this fact Sheet.
Trafficking as a violation of human rights
Many of the practices that are associated with modern-day trafficking are clearly prohibited under international human rights law. For example: human rights law forbids debt bondage: the pledging of personal services as security for a debt where the value of those services is not applied towards the liquidation of the debt or the their length or nature is not limited and defined. Many trafficked persons who enter into a debt with their exploiters (relating to, for example, placement or transportation fees) find themselves in a situation of debt bondage: the debt is used as a means of controlling and exploiting them. Human rights law also prohibits forced labour, defined by ILO Convention 29 as: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. Slavery, servitude, child sexual exploitation, forced marriage, servile forms of marriage, child marriage, enforced prostitution and the exploitation of prostitution are among other trafficking-related practices that are prohibited under international human rights law.
International human rights treaties and trafficking in persons:
Five of the major human rights treaties – the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women – contain substantive reference to trafficking, the International Covenant on Civil and political Rights.The Convention on the rights of migrant workers and members of their families. . However, over the past decade a general agreement has emerged within the international community that trafficking itself is a serious violation of human rights. For example, both the European Trafficking Convention and the EU Trafficking Directive identify trafficking as a violation of human rights. The United Nations General Assembly and Human Rights Council have repeatedly affirmed that trafficking violates and impairs fundamental human rights, as have many of the international human rights mechanisms.
[i]UN Office on Drugs and Crime, Legislative Guides for the Implementation of the United Nations Convention Against Transnsnational Organized Crime and the Protocols Thereto, UN Sales No. E.05.V.2 (2004) (2004). (1) recruitment, transportation, transfer, harbouring or receipt of persons; (2) 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 benefitsto achievethe consent of a person having control over another person; (3) 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. [WHAT IS THE DEFINITION OF EXPLOITATION?] (See*forced labour*, *slavery*, *sexual exploitation of children*). States are obliged to take measures against trafficking under CEDAW art 6 and CRC art 35, The Palermo Protocol and other international and regional human rights instruments.[2] Trafficking of children by any means is deemed illegal – whether violence or coercion is present – and will include children trafficked for sexual exploitation, adoption, labour (eg as domestic workers or beggars) and child soldiers. [DOES THIS MEAN THAT CONCERNING CHILDREN, ONLY ELEMENTS (1) AND (3) ABOVE ARE REQUIRED?] Trafficking of adults requires coercion, abduction, fraud, deception or abuse of power or of a position of vulnerability. Exploitation of trafficked persons takes place in all sectors of the economy including agriculture and domestic work. The Palermo Protocol obliges States Parties to criminalise the trafficking in persons.[3] States have limited obligations with regard to protecting and assisting victims [WHAT DOES 'PROTECT' EXACTLY REQUIRE?],[4] and adopt policies, programmes and other measures to prevent and combat trafficking and prevent revictimisation.[5] States should train law enforcement and immigration officials.[6] In the European context, in Rantsev v Cyprus and Russia,[7] the ECtHR held that trafficking in human beings, falls within the scope of article 4 ECHR which prohibits slavery, servitude and forced labour. The Court specifically looked at the obligations under the Palermo Protocol and the European Anti-Trafficking Convention and held that states have a duty to (1) prevent trafficking, (2) protect victims and (3) punish traffickers.[8] The Court set out a number of positive obligations flowing from the prohibition against trafficking in the following terms: The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.[9] [1] Palermo Protocol art 3(a). [2] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; ACHR art 6(1) (traffic in women); Inter-American Convention on International Traffic in Minors; Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women art 2(b); Protocol to the ACHPR on the Rights of Women in Africa art 4(g); African Charter on the Rights and Welfare of the Child art 29; SADC Protocol on Gender and Development art 20(5); CoE Convention on Action against Trafficking in Human Beings; Arab Charter (2004) art 10(2) (trafficking for prostitution or sexual exploitation); South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution; SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia art IV(3)(a). On other regional initiatives see the UN Special Rapporteur on Trafficking in Persons, especially in women and children, A/HRC/14/32 (2010), paras 17-33. See also UN High Commissioner for Human Rights, Principles and Guidelines on Human Rights and Trafficking, E/2002/68/Add.1 (2002), [3] Art 5. [4] Art 6. [5] Art 9. [6] Art 10(2). [7] Rantsev v Cyprus and Russia application 25965/04 (ECtHR 2010). [8] Para 285. [9]Para 284.
Trafficking is defined by three elements: (1) action: recruitment, transportation, transfer, harbouring or receiot of persons. (2) Means: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another.(3) Purpose: Exploitation ( including 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, sevitude or the removal of organs.
International law provides a different difinition for trafficking in chlidren ( i.e persons under eighteen years of age) , the means element is not a required element, but only the two elements of action and purpose.
by its methods, which relates to the] moving of a person; (2)
[THIS PART SHOULD BE CUT - IT MAKES EXTREMELY CONFUSING AND WITH THIS QUALIFICATION IT DOES NOT PROVIDE DEFINITION OF ELEMENTS
by its means, such as] through the use of coercion or deception; and (3)
[THIS PART SHOULD BE CUT - IT MAKES EXTREMELY CONFUSING AND WITH THIS QUALIFICATION IT DOES NOT PROVIDE DEFINITION OF ELEMENTS
by its purpose, which is] FOR THE PURPOSE OF the exploitation of person. Such exploitation includes the exploitation of prostitutes and other forms of sexual exploitation, forced labour, slavery, servitude, and the removal of organs.
States have a duty to (1) prevent trafficking, (2) protect victims and (3) punish traffickers.
Comprehensive:
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) defines trafficking in article 3 as: [1]
' Trafficking in Persons' shall mean the recruitment, transportation, transfer, harbouring or reciept 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 vulverability or of the giving oe receiving of payments oe 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 sevicess, slavery or practices similar to slavery, sevitude or the removal of organs.
Important features of the definitions:
The following are key features of the new international legal understanding about trafficking:
Trafficking affects women, men and children and involves a range of exploitative practices: Trafficking was traditionally associated with the movement of women and girls into sexual exploitation. The international legal definition set out above makes clear that men and women, boys and girls can all be trafficked - and that the range of potentially exploitative practices linked to trafficking is very wide. The list of examples set out in the definition is an open-ended one and it is possible that new or additional exploitative purposes will be identified in the future.
Trafficking does not require the crossing of an international border: The definition covers internal as well as cross-border trafficking. That is, it is legally possible for trafficking to take place within a single country, including the victim’s own.
Trafficking is not the same as migrant smuggling: Migrant smuggling involves the illegal, facilitated movement across an international border for profit. While it may involve deception and / or abusive treatment, the purpose of migrant smuggling is to profit from the movement, not the eventual exploitation as in the case of trafficking.
Trafficking does not always require movement: The definition of trafficking identifies movement as just one possible way that the “action” element can be satisfied. Terms such as “receipt” and “harbouring” mean that trafficking does not just refer to the process whereby someone is moved into situations of exploitation, it also extends to the maintenance of that person in a situation of exploitation.
It is not possible to “consent” to trafficking: International human rights law has always recognized that intrinsic inalienability of personal freedom renders consent irrelevant to a situation in which that personal freedom is taken away. This understanding is reflected in the “means” element of the definition of trafficking. As noted by the drafters of the Trafficking Protocol, “[o]nce it is established that deception, force or other prohibited means were used, consent is irrelevant and cannot be used as a defence.”[i]
II. What is the relationship between human rights and human trafficking?
The connection between human rights and trafficking is very strong. From its earliest days to the present, human rights law has loudly proclaimed the fundamental immorality and unlawfulness of one person appropriating the legal personality, labor, or humanity of another. Human rights law has prohibited discrimination on the basis of race and sex; it has demanded equal or at least certain key rights for aliens; it has decried and outlawed arbitrary detention, forced labor, debt bondage, forced marriage, and the commercial sexual exploitation of children and women; and it has championed freedom of movement and the right to leave and return to one’s own country. There can be no doubt that the spirit and substance of human rights law rejects the practices and results that are integral to the human trafficking process.
Different human rights will be relevant at different points in the trafficking cycle. Some rights will be especially relevant to the causes of trafficking (for example, the right to an adequate standard of living); others to the actual process of trafficking (for example, the right to be free from slavery); and still others to the response to trafficking (for example, the right of suspects to a fair trial). Some rights are broadly applicable to each of these aspects. The text box below sets out the rights most relevant to trafficking. Key aspects of these rights and their application in the context of trafficking are explored at different points in this fact Sheet.
Trafficking as a violation of human rights
Many of the practices that are associated with modern-day trafficking are clearly prohibited under international human rights law. For example: human rights law forbids debt bondage: the pledging of personal services as security for a debt where the value of those services is not applied towards the liquidation of the debt or the their length or nature is not limited and defined. Many trafficked persons who enter into a debt with their exploiters (relating to, for example, placement or transportation fees) find themselves in a situation of debt bondage: the debt is used as a means of controlling and exploiting them. Human rights law also prohibits forced labour, defined by ILO Convention 29 as: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. Slavery, servitude, child sexual exploitation, forced marriage, servile forms of marriage, child marriage, enforced prostitution and the exploitation of prostitution are among other trafficking-related practices that are prohibited under international human rights law.
International human rights treaties and trafficking in persons:
Five of the major human rights treaties – the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women – contain substantive reference to trafficking, the International Covenant on Civil and political Rights.The Convention on the rights of migrant workers and members of their families. . However, over the past decade a general agreement has emerged within the international community that trafficking itself is a serious violation of human rights. For example, both the European Trafficking Convention and the EU Trafficking Directive identify trafficking as a violation of human rights. The United Nations General Assembly and Human Rights Council have repeatedly affirmed that trafficking violates and impairs fundamental human rights, as have many of the international human rights mechanisms.
[i]UN Office on Drugs and Crime, Legislative Guides for the Implementation of the United Nations Convention Against Transnsnational Organized Crime and the Protocols Thereto, UN Sales No. E.05.V.2 (2004) (2004).
(1) recruitment, transportation, transfer, harbouring or receipt of persons;
(2) 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;
(3) 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. [WHAT IS THE DEFINITION OF EXPLOITATION?]
(See*forced labour*, *slavery*, *sexual exploitation of children*).
States are obliged to take measures against trafficking under CEDAW art 6 and CRC art 35, The Palermo Protocol and other international and regional human rights instruments.[2]
Trafficking of children by any means is deemed illegal – whether violence or coercion is present – and will include children trafficked for sexual exploitation, adoption, labour (eg as domestic workers or beggars) and child soldiers. [DOES THIS MEAN THAT CONCERNING CHILDREN, ONLY ELEMENTS (1) AND (3) ABOVE ARE REQUIRED?] Trafficking of adults requires coercion, abduction, fraud, deception or abuse of power or of a position of vulnerability. Exploitation of trafficked persons takes place in all sectors of the economy including agriculture and domestic work.
The Palermo Protocol obliges States Parties to criminalise the trafficking in persons.[3] States have limited obligations with regard to protecting and assisting victims [WHAT DOES 'PROTECT' EXACTLY REQUIRE?],[4] and adopt policies, programmes and other measures to prevent and combat trafficking and prevent revictimisation.[5] States should train law enforcement and immigration officials.[6]
In the European context, in Rantsev v Cyprus and Russia,[7] the ECtHR held that trafficking in human beings, falls within the scope of article 4 ECHR which prohibits slavery, servitude and forced labour. The Court specifically looked at the obligations under the Palermo Protocol and the European Anti-Trafficking Convention and held that states have a duty to (1) prevent trafficking, (2) protect victims and (3) punish traffickers.[8] The Court set out a number of positive obligations flowing from the prohibition against trafficking in the following terms:
The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.[9]
[1] Palermo Protocol art 3(a).
[2] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; ACHR art 6(1) (traffic in women); Inter-American Convention on International Traffic in Minors; Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women art 2(b); Protocol to the ACHPR on the Rights of Women in Africa art 4(g); African Charter on the Rights and Welfare of the Child art 29; SADC Protocol on Gender and Development art 20(5); CoE Convention on Action against Trafficking in Human Beings; Arab Charter (2004) art 10(2) (trafficking for prostitution or sexual exploitation); South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution; SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia art IV(3)(a). On other regional initiatives see the UN Special Rapporteur on Trafficking in Persons, especially in women and children, A/HRC/14/32 (2010), paras 17-33. See also UN High Commissioner for Human Rights, Principles and Guidelines on Human Rights and Trafficking, E/2002/68/Add.1 (2002),
[3] Art 5.
[4] Art 6.
[5] Art 9.
[6] Art 10(2).
[7] Rantsev v Cyprus and Russia application 25965/04 (ECtHR 2010).
[8] Para 285.
[9]Para 284.