Addressing Exploitation Risk in the Migration Context
The year 2000 marked the beginning of not just a new century, but a new millennium. Such a significant year will undoubtedly be remembered for many reasons, but for those who had advocated for greater protections for those at the greatest risk of exploitation, the year 2000 will be remembered as the year in which States, UN officials and NGOs gathered together in the Italian city of Palermo to adopt the Protocol to Prevent, Supress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol). As will become clear below, the links between trafficking and migration are such that tackling trafficking is especially important in the context of migration. This article provides an overview of the Palermo Protocol, the role that human rights law can and does play in addressing trafficking, and additional aspects of the UN’s efforts to tackle human trafficking.
A Look Inside the Palermo Protocol
With the adoption of the Palermo Protocol came an international legal definition of trafficking. The definition, which is contained in Article 3, has 3 main elements: an act, a means, and a purpose:
Act (recruitment, transportation, transfer, harbouring or receipt of persons)
Means (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person)
Purpose (exploitation: defined at a minimum as ‘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’)
Along with these three elements, Article 3 stipulates that consent is irrelevant where any of the stated means are employed. Further, where children are concerned (those under 18), only the act and purpose elements need be present for trafficking to be established. Thus, if an individual is recruited, through fraud, for the purpose of forced labour, this conduct would more than likely amount to trafficking. Similarly, if an individual is transported across a border by means of coercion for the purpose of the exploitation of prostitution, this conduct would also likely amount to trafficking. While only one of these examples describes activity explicitly connected with migration, both situations could have an impact upon migrants and displaced persons. In the first situation, for example, a refugee or asylum seeker who is already within the country of intended asylum may be recruited for the purpose of forced labour. In the second situation, the migration element forms the ‘act’, i.e. transportation.
The Palermo Protocol did not simply set out a definition of human trafficking. It also contains obligations to prosecute and prevent trafficking, and to protect victims of trafficking. For example, Article 5 requires States to criminalise trafficking. Article 6 sets out obligations for States to protect victims. Such protection might include ensuring court proceedings are confidential, or it might require the provision of medical assistance or housing. Further, Article 9 stipulates that States ‘shall establish comprehensive policies, programmes and other measures…to prevent and combat trafficking in persons’. Thus, it is not enough for States to criminalise trafficking; they must also pro-actively work to prevent trafficking and protect trafficked persons.
A Role for a Rights-Based Approach?
The Palermo Protocol’s full name tells us which UN Convention it is a Protocol to: The UN Convention against Transnational Organized Crime. This means that the Palermo Protocol is not primarily a human rights instrument, like the human rights treaties within the UN system. Rather, the primary focus is a criminal law one. This focus has been the subject of criticism by some, while others point out that the criminal law approach may in fact have resulted in the wider acceptance and ratification of the Palermo Protocol. Whichever view is taken, the growing importance of a rights-based approach to the issue of trafficking is now more than apparent. The core international human rights law (IHRL) treaties contain obligations which can certainly play a role in reducing trafficking (and re-trafficking) while tackling trafficking risk factors. Examples include:
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Article 6: obligation to take action against trafficking of women
International Covenant on Civil and Political Rights (ICCPR) – Article 8: Prohibition of Slavery and Forced Labour
Beyond these examples, the protection of other rights, particularly socio-economic rights, can help to reduce risk factors of trafficking, such as ‘poverty’ and ‘lack of opportunity’. Given the various ways in which human rights law could provide protection, as well as the UN mechanisms available to enforce such rights, it is essential that a rights-based approach continues to be prioritised in efforts to address trafficking.
Beyond Palermo: UN Action against Trafficking
While the Palermo Protocol may be seen as the centre of gravity of the UN’s progress in addressing trafficking, it is important not to overlook additional aspects of the UN’s anti-trafficking apparatus. Within the United Nations Office on Drugs and Crime (UNODC), a number of initiatives are of note. The GLO.ACT Initiative (Global Action to Prevent and Address Trafficking in Persons and Smuggling of Migrants) took place from 2015-2019 and involved not only UNDOC, but also the International Organization for Migration (IOM), the United Nations Children’s Fund (UNICEF), and the European Union (EU). Under GLO.ACT, a number of countries were assisted in their efforts to address trafficking. Currently the second phase of this project: ‘GLO.ACT Asia and the Middle East’ is in progress.
Further, UNODC has created a Human Trafficking Knowledge Portal, which contains valuable information about domestic implementation of the Palermo Protocol. The Portal contains a Case Law Database, a Database of Legislation, and Bibliographic Database, and constitutes a valuable resource for practitioners and researchers alike. UNODC also regularly publishes ‘issue papers’ on various aspects of human trafficking. For example, in 2018, an issue paper on ‘The International Legal Definition of Trafficking Persons’ was published.
In addition to the work of UNODC, other entities within the UN have had a role to play. For example, Human Rights Commission decision 2004/110 created a UN Special Rapporteur on Trafficking in Persons, Especially Women and Children (SRT). The SRT’s mandate has been extended several times since, most recently in July 2020. The SRT undertakes a number of activities, including country visits, and the submission of reports to the UN’s General Assembly. During the country visits, the SRT assesses the situation relating to trafficking, and makes recommendations. Following the country visit, a report is compiled.
Finally, the work of ICAT, The Inter-Agency Coordination Group against Trafficking in Persons, ought to be acknowledged. ICAT is, ‘a policy forum mandated by the UN General Assembly to improve coordination among UN agencies and other relevant international organizations to facilitate a holistic and comprehensive approach to preventing and combating trafficking in persons’. Just this week, ICAT members met virtually and renewed commitment to addressing trafficking, including a commitment going forward to focus on addressing the ‘demand that fuels human trafficking’.
Addressing Trafficking in the Context of Migration: What Next for the UN?
It’s clear that in the last 20 years, significant steps have been taken, within the UN architecture, to address human trafficking. Looking forward to the next 20 years, what additional steps need to be taken in order to address trafficking in the context of migration?
First, more explicit connections ought to be made between trafficking and ‘risky’ migration. It is true that States often have obligations to identify potential or actual victims of trafficking within asylum procedures, and ensure adequate protections for these individuals. For example, the EU’s Asylum Procedures Directive requires extra protections for unaccompanied minors. Nevertheless, the question remains as to what precisely addressing trafficking in the asylum context requires, beyond obligations to identify potential or actual victims of trafficking, at the border, or provide extra protection for these individuals within asylum procedures. How can refugees and asylum seekers be protected from trafficking during their asylum process and even after asylum? How can migrant workers be better protected from exploitation amounting to trafficking?
Second, while the last 20 years have seen the widespread acceptance of the Palermo Protocol’s definition of trafficking, and while we can speak of an ‘international legal definition’ of trafficking, it is worth acknowledging that discussion still continues as to the precise content of each of the elements. Thus, the challenge going forward is to continue the pursuit of greater understanding of, and agreement upon the parameters of each of the elements within the Palermo definition. This should be accompanied by training and educating relevant stakeholders, as well as the general public, as to what precisely constitutes trafficking. Such training would enable trafficking cases to be more effectively identified and indeed prevented in all contexts, including that of migration.
Third, the existing agencies and organizations involved in addressing trafficking must continue their vital work, which includes the production of knowledge, data, and a shared commitment to addressing the root causes of trafficking.
Finally, it is essential that the pursuit of a rights-based approach continues to play a significant role in efforts to address trafficking. Given the UN’s central role in the development of IHRL, it could play a central role in advancing such an approach, facilitating inter-State dialogue not only on how to intercept trafficking, but how to ensure that the rights of all are protected, so that the risk of exploitation is removed, in every migratory context. The protection of human rights of refugees, asylum seekers, migrant workers, and everyone on the move must remain front and centre in the next 20 years, if efforts to address trafficking are to succeed.
Gillianis a PhD Researcher in the School of Law at Queen’s University, Belfast. Her research focuses on the role of public international law in addressing human trafficking among refugees and asylum seekers