International Legal Framework – United Nations

In 2000 the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime (hereafter, Palermo Protocol) was adopted, which came into force in 2003. This Protocol is important as it provides a common definition of trafficking and sets international standards.

Art. 3(a) of the Palermo Protocol defines trafficking as:

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 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 of organs.

* In the case of children the use of any form of coercion or abuse is not required

The definition of the Palermo Protocol has been an issue of major struggle and dispute between those who consider prostitution itself to constitute trafficking (abolitionists) and those who consider prostitution as labour, acknowledging the sex industry as a sector in which trafficking occurs. The definition of trafficking in the Palermo Protocol represents a compromise between these positions as it allows room for interpretation. However, this has also resulted in widely differing interpretations, for example, as to how exploitative an employment relationship has to be before one can say that a person was recruited and transported “for the purpose of exploitation”.

When comparing this definition to that of the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, in which any form of prostitution itself is considered trafficking, the achievement of the Palermo Protocol is that it recognises exploitation as the defining criterion: The core of the crime is abuse, violence and exploitation, rather than the movement across borders or the line of work. It recognises all forms of forced labour and slavery-like practices as trafficking. A shortcoming of the Protocol is that it is developed within a criminal justice framework and therefore does not include any binding provisions for the protection of the human rights of trafficked persons.

Review Mechanism

In October 2018, a review mechanism to the UN Palermo Convention was established that will mainly comprise country (desk) reviews; in December 2020, the order of the evaluation of states have been decided by the drawing of lots.

Each year one third of the States parties to the Convention will be selected to be reviewed for all the instruments they are parties to. Further each State party under review shall provide the responses to the self-assessment questionnaire.

Civil society can participate in three main areas; firstly states parties are ‘encouraged’ to consult with NGOs for input for the reports they will submit; further NGOs are offered the opportunity to take part in a ‘constructive dialogue’  convened at the thematic working groups of the UNTOC COP and lastly a panel of representatives from civil-society groups, including NGOs, may be arranged by the UNODC to share independent views on the review process. Civil-society groups will also be able to participate in and make oral statements at the ‘general review’ track of the mechanism, taking place at the COP.