Trafficking legislation
The 1949 Convention on Trafficking
Until 2000, the most important piece of legislation regarding trafficking was the 1949 Convention on the Suppression of Trafficking in Persons and the Exploitation of the Prostitution of Others.
"the Convention failed to provide a clear definition of trafficking and did not reflect the full nature and scope of the abuse"
This convention was heavily criticised by two core groups – the Human Rights Caucus, led by the International Human Rights Law Group (IHRLG) and the Global Alliance Against Trafficking in Women (GAATW); and the Coalition Against Trafficking in Persons (CATW),
The main criticism was that the Convention failed to provide a clear definition of trafficking and did not reflect the full nature and scope of the abuse.
It also offered little protection for those who could not prove they had not been forced into the situation in which they found themselves. Above all, the campaigners called for a human rights approach which recognised the right of individuals to migrate, but also recognised their right not to be exploited or abused in the process.
A new trafficking protocol
As a result of the campaigns and the heightened profile of trafficking as a severe international problem, the 1949 convention was enhanced with a new protocol in 2000, the ‘Protocol to prevent, suppress and punish trafficking in persons, especially women and children’, which supplemented the United Nations convention against Transnational Organised Crime. The Protocol stressed that it was not necessary for victims of trafficking to prove they had been forced into an initial situation, but that the slave-like conditions under which they subsequently found themselves determined their status as victims in the eyes of the law.
The protocol defines trafficking in persons for the first time in a legal document, 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."
Issues of consent
The leading groups campaigning for a change to the trafficking law differ on one key point. Both agree that those forced into prostitution should not be liable to prosecution, but that the act of trafficking for forced prostitution should be criminalised. Where they disagree is on whether prostitution can be considered voluntary under any circumstances. The Human Rights Caucus (HRC) are calling for voluntary or non-coercive prostitution or other sex work to be excluded from trafficking laws and to be eligible for consideration under international labour standards instead. They take the view that women can and do consent to be sex workers, but may find themselves in exploitative situations. At present sex workers are excluded from assistance under trafficking law unless they can prove they were forced into the sex industry.
CATW, by contrast, maintains that prostitution is inherently a human rights violation and should be abolished and punished. They argue that under no circumstances can prostitution be said to be voluntary.
