The Challenges of the Current Legal Regime to Trafficking in Women
Isabel Borges
The BSIS Journal of International Studies, Vol 6 (2009)
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The BSIS Journal of International Studies is published by the Brussels School of International
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THE CHALLENGES OF THE CURRENT LEGAL REGIME TO
TRAFFICKING IN WOMEN
By: Isabel Borges
I- Introduction
Human trafficking “the trade in human misery” and has emerged as a “transnational,
regional and national issue” (Coontz and Griebel 2004 p. 48).
It is estimated that throughout the world more than 4 million people are trafficked
per year. Since trafficking is an “underground activity” it is not easy to get trustworthy data
on the extent of trafficking in women which also reflects to some degree the “low priority
given by authorities to combat trafficking” (Cole 2005 p. 5). The United Nations (UN) has
estimated that human trafficking is the third greatest profit source in the world after
trafficking in narcotics and arms, raising profits up to $9.5 billion US dollars each year
(Lindo 2006). Experts agree that women for sex trade are globally widespread. “This
industry is a profitable international enterprise that encompasses numerous methods of
sexually exploiting women, including pornography, sex tourism, mail order brides and
forced prostitution” (Corrigan 2001 p. 1).
The UN has recognised trafficking as a form of
slavery and has denounced slavery as a violation of fundamental human rights (Cole 2005).
There are numerous international, regional and national state laws that forbid trafficking
women for sex trade but global and regional trafficking especially of women and children
persists.
This paper analyses the current legal regime of trafficking in women at international
and European levels pointing out the main critiques and challenges to these approaches. A
set of recommendations for the international community are also outlined as a way to
narrow the existing legal gaps to combat human trafficking, especially of women. In order
to contextualise human trafficking and its legal regime, the essay starts by portraying global
trafficking patterns and current trends.
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II- Traffic Patterns and Current Trends Why trafficking is so successful?
In this globalised world there are millions of people seeking better economic
opportunities in other countries and being displaced by internal wars or environmental
disasters every year. The economies of these countries are highly dependent on this
movement. “Thus human trafficking can be linked to the social and economic changes
brought about by globalisation” (Coontz and Griebel 2004 p. 49). Indeed scholars attribute
the success of traffickers to several factors “ global social and economic trends, widespread
conditions of poverty, especially for women, the high profitability of the business,
government inaction regarding trafficking schemes, and in some situations, government
complicity” (Corrigan 2001 p. 2). Traditionally trafficking victims came from Southeast Asia
and Latin America but in recent years they derive from Eastern Europe especially Ukraine,
Russia and Czech Republic where the collapse of communism created an ambience
susceptible to sexual abuse. “The most notorious trafficking routes lead from Eastern
Europe, the Caribbean, Thailand, the Philippines, and Ghana to Western Europe; from
Thailand and the Philippines to Japan; from Burma to Thailand; and from Nepal to India”
(Cole 2005 p 5).
Many women become involved in the global sex trade by coercion mechanisms used
by traffickers, from abduction to false promises of lucrative jobs in other countries becoming
commodities, on which traffickers endlessly capitalize. “This cyclical effect distinguishes
human trafficking from other organised crimes like drug trafficking or human smuggling
where profits are collected once based on single service or product” (Coontz and Griebel
2004 p. 50). Identification documents are confiscated, earnings and freedom are withheld
and victims become trapped, dependent, creating a never ending debt bondage relationship
with their traffickers. The victims “psychological protection mechanism is to “turn of” and
stop thinking … [her] only purpose is survival” (Cole 2005 p. 5) A trafficked women is
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further discouraged to seek help because of her status as an illegal immigrant and
prostitute.
Experts acknowledge that trafficking patterns vary in accordance with the “global
supply of and demand for” and are in many cases linked with large networks of organised
crime which “profits are relatively risk free” (Corrigan 2001). In Europe trafficking
operations are commonly carried out with many small local criminal groups: “loners who
operate as individuals; isolated groups consisting of two or more persons accounting for
recruitment, transport, and exploitation; and clusters of persons operating as criminal
networks” (Lehti and Aromaa 2006 p. 75) this last group is responsible for 50-80% of
trafficking volume in western Europe. Trafficking networks are mainly led by men but the
main recruiters in Baltic countries, parts of Russia and central Asia are women, often former
prostitutes (ibid.). However, “the vast majority of those who buy sex (…) are ordinary
people” [they act within social and political constructs where their behaviour is considered]
“normal, natural, necessary and/or inevitable, and so justified” (Anderson and Davidson
2003 p. 41). These practices are further justified with regards to women coming from ethnic
minorities and developing countries which are perceived as originating from a devaluated
group of society being “naturally” marginalised, discriminated against and therefore,
susceptible to sexual exploitation.
To coordinate global trafficking operations traffickers take advantage of the
advancement of information and communication technologies such as computers, Internet
and mobile phones. Technology such as the Internet has created no boundaries for
traffickers going beyond physical borders and facilitating the development of an effective
response to market demands (Corrigan, 2001).
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III- Legal Frameworks Targeting Trafficking in Women
1. The International Community Response to Human Trafficking
Human trafficking has been an issue of international concern since the late
nineteenth and early twentieth centuries, previous to the modern human rights movement
had arisen. As the international community became increasingly organised through the
League of Nations 1 and then the United Nations 2 the response to address the problem of
human trafficking became more refined 3 . In addition to documents addressing trafficking in
women for “immoral purposes” or prostitution there were also other international
agreements on human trafficking focusing on slave trade, the “white” slave traffic 4 and
forced labour.
Until the 1900’s trafficking associated with commercial sex was regulated
independently from other types of human trafficking. Since 2000, the two issues have been
bonded in the United Nations Protocol to Prevent Suppress and Punish Trafficking in
Persons, Especially Women and Children also known as the Palermo Protocol. The
circumstances have evolved from “combating slavery or prostitution to the international
fight against organised crime” (Lehti and Aromaa 2006 p. 78).
The following sections will provide a more detailed analysis of the international
responses to human trafficking especially of women.
The League of Nations was established in 1920 by the Covenant of the League of Nations.
The United Nations was created in 1948 by the Charter of the United Nations. It took over the
majority of the functions of the League of Nations. In its Article 1 paragraph 3 the Charter states that
the purposes of the United Nations is “to achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion”
3 The majority of scholars tend to agree that the modern human rights movement originated as a
result of the violence of World War II and the Holocaust and the commitment of the international
community to establish an international framework to prevent comparable events in the future
although the “concept of human rights” goes back a lot further (Schacter 1991).
4 International efforts to address the problem of trafficking can be traced back to The International
Agreement for the Suppression of White Slave Traffic
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2
4
1.1. Answering to the “White Slave Traffic”
The first considerations of human trafficking date back to the nineteenth century in
response to the augmentation of cases of “white slavery”. Even though the reports of white
slave trade were abundant the amount of cases was in fact, diminutive. The international
community response was actually intended to mobilise political interest, “save the victims”
and oppose to a new form of “white slave traffic” i.e. prostitution or sexual exploitation.
This means that at the time the international community only very narrowly addressed the
issue of trafficking. The international agreements “took a predominantly abolitionist
approach to prostitution and were typically limited to issues of law enforcement and
cooperation” (Bruch 2004 p. 4). The first series of treaties, the 1904 International Agreement
for the Suppression of White Slave Traffic and the 1910 International Convention for the
Suppression of White Slave Traffic stressed the need for coordinated approach to
information between state parties, examined ways to repatriate the victims of traffic and
bound its signatories punish traffic procurers 5 . Even though the legal documents were not
widely adopted and did not define trafficking per se it nevertheless raised awareness of the
problem and referred to it as the act of “procuring of women of girls for immoral purposes
abroad” (ibid.).
With the creation of the League of Nations in 1920 two other international
agreements attempted to address the issue of human trafficking with a continuing focus on
women and children. On the one hand the 1921 Convention for the Suppression of Traffic in
Women and Children and on the other hand the 1933 International Convention for the
Suppression of the Traffic of Women of Full Age. Both agreements aimed at completing the
The International Convention for the Suppression of White Slave Traffic of 1910 obliged its
signatories to “severely punish any person who hired, abducted or enticed for immoral purposes any
women under the age of twenty-one, or used violence, threats, fraud or any compulsion on a women
over twenty-one to accomplish the same purpose, even if he or she committed acts constituting the
offense in different countries.”
5
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lacunas of the earlier legal documents by defining the offender and criminalising its acts 6 an
issue, nevertheless, that should be controlled by internal States’ regulations (Corrigan, 2001).
The 1921 Convention also further enhanced the scope of its protection to include non-white
women. However, the outbreak of World War II and the dissolution of the League of
Nations jeopardised further work on this issue.
With the creation of the United Nations the international community became more
committed to address the issue of trafficking. Despite no explicit mention of trafficking in
the United Nations Charter, the International Declaration of Human Rights in 1948
(prohibiting in Article 4 “slavery or servitude”) and the adoption of the United Nations
Convention for the Suppression of the Traffic in Persons and the Exploitation of the
Prostitution of others in 1949 was in fact, the “most comprehensive treaty addressing
trafficking to date” (Bruch 2004, p. 4). Not only it aimed at complementing the previous
agreements but it also underlined the anti-prostitution 7 (in neutral terms regardless of
gender) and law enforcement approach 8 (obliged States to punish traffic procurers whether
consent had been or not given to them in domestic and international settings). “The 1949
Convention made prostitution [and trafficking] governable by international law, whereas it
For example the International Convention for the Suppression of the Traffic of Women of Full Age
of 1933, in Article 1, described the offender as a person who “in order to gratify the passions of
another person, has procured, enticed or led way even with her consent a women or girl of full age
for immoral purposes to be carried out in another country.” In Article 2 of the Convention state
signatories “agree to take the necessary steps to ensure that these offences shall be punished in
accordance with their gravity. Available from:
http://www.oas.org/Juridico/mla/en/traites/en_traites-inter-women_1933.pdf
7 “For the first time, the abolitionist ideology that had inspired and dominated international
prostitution policies since 1890s was expressed in clear words in the preamble [of 1949 Convention]:
“Prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are
incompatible with the dignity and worth of the human person and endanger the welfare of the
individivual, the family and the community.” (Lehti and Aromaa p. 81) All forms of licensing
prostitution were prohibited (Article 6 and 16). Available at:
http://www.unhchr.ch/html/menu3/b/33.htm
8 The 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the
Prostitution of others sought to (Article 1) “punish any person who, to gratify the passions of punish
any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes
of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of
another person, even with the consent of that person”. (emphasis added). Available from:
http://www.unhchr.ch/html/menu3/b/33.htm
6
6
had previously been exclusively within States domestic jurisdiction”. (Corrigan, 2001 p. 3) It
emphasised the role of the state to disseminate information and raise awareness of potential
victims of the risk of trafficking 9 and its obligation to assist with the repatriation of
trafficked victims 10 . Even though the Convention outlined the implementation methods
they were considered frail and ineffective 11 (Reanda, 1991). “The 1949 Convention was the
last attempt by the international community to address human trafficking by treaty for the
next fifty years” (Bruch 2004 p. 4).
In addition to the various international anti-trafficking treaties with a special
emphasis on prostitution or sexual exploitation there were other treaties at the same time
which aimed at addressing slavery (the 1926 Convention to Suppress the Slave Trade and
Slavery and the 1956 Supplementary Convention on the Abolition of Slavery, The Slave
Trade, and Institutions and Practices Similar to Slavery) and forced labour (the 1930 Forced
Labour Convention and the 1957 Abolition of Forced Labour Convention). However,
“White slavery” continued to be a synonym of sexual exploitation of women and there was
no real effort to broaden the problem of trafficking to the slavery and labour treaties. “The
anti-trafficking movement essentially ignored other aspects of trafficking such as forced
labour and slavery-like practices. Instead, these issues were addressed by a separate track of
international activity situated in the international human rights and labour rights spheres”
(Bruch 2004 p. 4). The 1926 and 1956 antislavery treaties focused on slave trade and
associated forms of servitude and forced labour remaining in effect today and relevant to
the discussion “to the prevention and combat of trafficking related to the exploitation of
See Article 17 (2) of 1949 Convention requiring states “to arrange for appropriate publicity warning
the public of the dangers of the aforesaid traffic”. Available from:
http://www.unhchr.ch/html/menu3/b/33.htm
10 See Article 18 and 19 of 1949 Convention inciting the cooperation between state parties on
repatriation measures. Available from: http://www.unhchr.ch/html/menu3/b/33.htm
11 Article 21 of the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation
of the Prostitution required state parties to annually report to United Nations Secretary General on
actions taken by them to execute the Convention. The role of the Secretary General was to merely
publish these reports periodically. Available from: http://www.unhchr.ch/html/menu3/b/33.htm
9
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human labour and to trafficking of domestic servants” (Lehti and Aromaa p. 79) which may
be translated into various forms of sexual exploitation and abuse. The 1930 and 1957 labour
conventions define “forced and compulsory labour” 12 and types of labour activities which
are forbidden which affect the issue of sex trafficking and traffickers international profit
making 13 (Dunbar 1999).
“However, these various approaches – the trafficking, the slavery and the forced
labour agreements – were generally inadequate in responding to even those aspects of
human trafficking they purported to address. They were not broadly adopted or
implemented by states. To the extent they had enforcement mechanisms, the mechanisms
were weak and states lacked political will to make them stronger.” (Bruch, 2004 p. 4)
1. 2. Answering to “Trafficking in Persons, Especially of Women and Children”
1.2.1 Convention on Elimination of All forms of Discrimination Against Women
In the 1970’s human trafficking especially trafficking of women came back to
international attention in part due to the global movement of human rights and women’s
rights. The 1979 Convention on Elimination of All forms of Discrimination Against Women
(CEDAW) was the second wave 14 of international response specifically outlawing
The Forced Labour Convention of 1930 defines “forced or compulsory labour” under Article 2 “all
work or service which is exacted from any person under menace of any penalty and for which the
said person has not offered himself voluntary”. Available at:
http://www.unhchr.ch/html/menu3/b/31.htm “Thus, while the term “trafficking” has not been
used, caused of action may be applicable under the term forced or compulsory labour through this
Convention” (Dunbar 1999 p. 4)
13 Article 1 (b) of 1957 Abolition of Forced Labour Convention provides international commitment
for the suppression of compulsory labour and combating traffickers profit making “method of
mobilising and using labour for purposes of economic development” Available at:
http://www.unhchr.ch/html/menu3/b/32.htm
14 Note that several conferences and events characterise this second wave of international response
and awareness raising to issue of trafficking especially of women such as the 1975 Wold Conference
of Women; 1980 Copenhagen conference (exploitation of women and children); 1985 Nairobi
Conference (“women victims of traffic and involuntary prostitution”); 1993 World Conference on
Human Rights (women rights and the elimination of trafficking); 1995 Beijing Fourth World
Conference on Women (violence against women and human rights), (Bruch 2004).
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trafficking 15 and sexual exploitation of women through eliminating all forms of
discrimination against women. The preamble of CEDAW indicates that its drafters
considered trafficking of women as a type of sex discrimination highlighting that despite the
numerous anti-trafficking treaties and early efforts to tackle the problem “widespread
discrimination against women still persists” (Corrigan 2001 p.4). The treaty takes a broad
non-discriminatory approach requiring State parties to remove any impediments to
achieving this goal. Even though the Article 6 of CEDAW does not define the “appropriate
measures” the Convention nevertheless outlines specific guidelines for States in eliminating
trafficking under Article 2 16 requiring State parties to take action to further equality between
women and men. “CEDAW aims to outlaw all sexually discriminating activities, including
trafficking and exploitation of prostitution, because such activities violate women’s
fundamental rights” (Corrigan 2001 p. 4) including the right to liberty and security of
person, freedom from slavery, torture and degrading treatment, right to work and just and
favourable conditions of work among others 17 . In 1992 the Committee on the Elimination of
Article 6 of CEDAW states: “States Parties shall take all appropriate measures, including legislation
to suppress all forms of trafficking in women and exploitation of prostitution of women” Available
at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article6
16 Article 2 of CEDAW states: “States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of eliminating discrimination
against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other
appropriate legislation if not yet incorporated therein and to ensure, through law and other
appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate,
prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure
through competent national tribunals and other public institutions the effective protection of women
against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure
that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person,
organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women”. Available
at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article2
17 See 1948 Universal Declaration of Human Rights. Available at:
http://www.un.org/Overview/rights.html
15
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Discrimination Against Women approved General Recommendation 19 18 clearly prohibiting
gender based violence highlighting that States may be held responsible for private acts of
violence (regardless of source: person, organisation or enterprise) if they do not take the
necessary diligences to sanction such infringements (clearly indicated under Article 2 e) of
the CEDAW) (ibid).
1.2.2 The Palermo Protocol
The growing international recognition of human trafficking in 1990’s lead finally to
the development and adoption by the UN of the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially of Women and Children 19 (known as the Palermo
Protocol), annexed to the broader UN Convention Against Transactional Organised Crime
(2000). The document appeared at a time when the international community was of the
opinion that the actual human rights framework did not respond adequately to the
problems of child and women’s prostitution, pornography, trafficking but required
increased international efforts within the context of international organised crime (Gallagher
2001). Up until this point there was significant amount of international (and domestic) laws
(see previous sections) but none of them conferred a legal framework.
The Protocol
provides for the first time an international definition of trafficking and provides states with
an explicit law enforcement framework (Lehti and Aromaa 2006; Gallagher 2001).
See Recommendation 19 of CEDAW. Available at:
http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm
19 The 2000 UN of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially of
Women and Children. Available at:
http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff
_eng.pdf
18
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Defining Trafficking
The Palermo Protocol under Article 3 (a) defines trafficking in persons as:
“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 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;
The verbosity of the definition aims to be as comprehensive as possible outlining the
ways in which trafficking can be translated to and for what purposes. The reason for this
lays in the fact that there was a need to detach trafficked, smuggled victims or illegal
migration, who were subject of an additional UN protocol (2000 UN Protocol Against the
Smuggling of Migrants by Land, Air and Sea 20 ). The main reason for the separation deals
with the free mutual consent, existent in the case of smuggling and non existent, in the case
of trafficking where the person is coerced and exploited and therefore, cannot be said that
has consented its exploitation. Trafficking deals mainly with forced trade and exploitation of
victims and it is irrelevant during this process whether an illegal international cross border
has taken place. “However, in everyday life, trafficking, human smuggling and illegal
migration are closely related and hard to distinguish” (Lehti and Aromaa 2006 p. 85)
“Criminalisation is the centrepiece of the Protocol” (Coontz and Griebel 2004 p. 51).
The key features of the Palermo Protocol are the state obligations of criminalisation of
traffickers; guidelines on victims protection and prevention and transnational cooperation.
The criterion of the crime includes three main critical components: “the act of the
The 2000 UN Protocol Against the Smuggling of Migrants by Land, Air and Sea. Available at:
http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_smug_en
g.pdf
20
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perpetrator, the intentional recruitment (Article 5), transportation, transfer, harbouring, or
receipt of persons; the means by which this act is perpetrated (threat use of force, other
forms of coercion, etc.) and the goal of the act: exploitation” (Lehti and Aromaa 2006 p. 83)
(Article 3 (a) of the Protocol).
The Palermo Protocol and the definition of trafficking offer a broad understanding of
the crime having legal and political value. Legally, the Protocol obliges ratifying States (“all
States shall adopt”) to develop their national laws according to the definition of the crime
and adopt further measures outlined in the Protocol aiming at suppressing the organised
crime of trafficking (criminalising of trafficking in persons; reinforcing border controls;
prevention and cooperation through cross border information exchange 21 ; establishing
liability of legal persons and the rules related with the confiscation and seizure of (illegal)
assets). Moreover, the Protocol also suggests what type of support and protection should be
made available to victims (counselling; information on court proceedings, medical and
psychological support; adequate housing; access to employment education and training;
special provisions based on gender, age and other needs regarding the usage of victims in
criminal investigations; safety of victims and their relatives). Politically, the mere existence
of the Convention and its Protocols reiterates the international importance and commitment
to these increasing problems (Gallagher, 2001).
Today the Palermo Protocol has 117 signatories and 118 States that have become
parties of the Protocol 22 .
According to article 9 paragraph 2 of the Palermo Protocol affirms “States Parties shall endeavour
to undertake measures such as research, information and mass media campaigns and social and
economic initiatives to prevent and combat trafficking in persons”.
22 See the State parties and signatories of the Protocol. Available at:
http://www.unodc.org/unodc/en/treaties/CTOC/countrylist-traffickingprotocol.html
21
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1.3. The Critique of the International Community Response to Trafficking in Women
The critique of the CEDAW
The main problem with the CEDAW is the challenge of its enforcement procedures
which are inadequate. Government signatories “often ignore trafficking in their countries”.
The CEDAW Committee’s powers are limited to the request of reports that must be
submitted by state parties on measures which they have enacted to give effect to the
CEDAW’s provisions (Article 17 CEDAW). Reports are often handed in late so that there is
no time to make appropriate recommendations. Then the Committee does not have a lot of
time to consider those reports in its annual meetings within a two weeks time frame. Plus
information and compliance are left to the good will of the state party in question (Steiner et
al 2008).
“All of these problems make the international treaties concerning trafficking in
women practically unenforceable despite their substantive potential. In theory, the
international treaties move toward establishing a principle that trafficking in women is sex
discrimination. In practice, however, such treaties provide the individual trafficked women
only minimal opportunity for relief” (Toepfer and Wells 1994 p.32).
The Critique of the Palermo Protocol
The Palermo Protocol has been criticized for mainly taking a law enforcement
approach (Jordan 2002) and for disregarding human rights of women who are traffic victims
(Coontz and Griebel 2004). The Protocol concentrates more on what countries must do to
prevent and penalize trafficking rather than on the establishment of victims support
mechanisms. States are give mere guidelines and especial encouragement to put in action
certain types of protection that can be potentially available to victims (see previous section).
Gallagher (2004) argues that the limitation of the Protocol’s victim’s protection provisions
13
actually undermines the effectiveness of the law enforcement framework. Other authors
such as Coontz and Griebel (2004 p. 57) stress that this may be due to the fact that the
“concept of agency” is missing from the definition of trafficking i.e. “female traffic victim’s
ability to actually participate and guide legal proceedings involving her in the criminal and
civil court settings (…) the traffic victim’s employment rights, her right to choose her job,
receive a fair wage, organise and join labour unions (…) [her] freedom of movement,
without moral supervision of the State.” The lack of effectiveness is even more striking if
national criminal systems are not sensitive to the question of trafficking and therefore, little
can be done to provide redress to traffic victims (Gallagher 2001).
In fact, the definition of trafficking has been accused of being to broad therefore,
open to different interpretations making it difficult to be translated and implemented into
domestic law and setting difficult evidence standards.
Even though there was a final
agreement on the definition of trafficking during the Protocol’s negotiation process there
was enormous disagreement in the debate about prostitution. At stake was on the one hand,
if trafficking involves a form prostitution and on the other hand whether it represents a
human rights issue (involving exploitation) or an economic issue (transnational problem
reflecting the economic struggle between the developed and developing nations). At the
time the US-led Coalition Against Trafficking Women (CATW); the Movement for the
Abolition of Pornography and Prostitution (MAPP) and the European Women Lobby
formed the “International Human Rights Network” arguing that female trafficking involves
a form a prostitution (whether voluntary or forced), constitutes a form a violence against
women and subsequently a violation of human rights, reiterating that all migrating women
working in the sex trade are trafficked. This position is inspired in the early views on white
slavery and morality. Contrasting with this view was the Thai-based Global Alliance
Against Trafficking in Women arguing that not all migrant sex workers are victims of
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trafficking and that (voluntary) prostitution and trafficking for purposes of sexual
exploitation are two distinct issues. Furthermore, international law must recognise labour
rights to migrant women will who deliberately chose to work in the sex trade for economic
reasons. Adding that all forms of prostitution cannot be merged into one class i.e. “forced
prostitution”. “Such differences in the interpretation of the Protocol raise legitimate
concerns whether and to what extent the Protocol (or any international standard) can
adequately address the issue of trafficking when such a crucial ideological paradox is left
unresolved at the international level” (Coontz and Griebel 2004 p. 51).
The Protocol has furthermore been condemned because it creates an encouraging
environment which allows States to classify irregular migrants as smuggled as opposed to
trafficked persons. As with the definition of trafficking in the Palermo Protocol the
definition of smuggled person in the UN Smuggling Protocol is considered to be
“sufficiently broad to apply to all irregular immigrants whose transport has been facilitated
– trafficked persons and smuggled persons alike. It is only the small number of trafficked
who would not be considered, prima facie, smuggled migrants” (Gallagher 2001 p. 10001001). Additionally, force, coercion and purposes of exploitation are other elements that
differentiate trafficking from smuggled migrants. Even though this maybe be obvious it is
nevertheless difficult to prove without further investigation. “Both protocols appear to place
the burden of proof squarely on the individual seeking protection (…) [and] nothing in
either protocol acknowledges the operational link between smuggling and trafficking”
(Gallagher 2001 p. 1001).
Because of this “grey area” between smuggled and trafficked, States are given the
opportunity to identify victims as smuggled rather than trafficked diminishing the state
bureaucracy and the administrative costs when identifying persons as smuggled rather than
trafficked. Generally if an individual is considered an irregular immigrant it can be
15
deported whereas a trafficked person as previously noted requires further protection and
support. “While state parties retain full capacity to decide who is smuggled and who is a
trafficked person, the additional protections granted to the latter group are likely to be of
limited practical utility” (ibid.). In trafficking, individuals are treated as “victims of crime”
with special protective mechanisms. In smuggling, individuals are treated as “accomplices
of a crime” or as illegal immigrants with a weaker legal status (Lehti and Aromaa 2006).
According to Gallagher (2001 p. 1004) the Palermo Protocol suffers from three main
faults: 1) “the absence of mandatory protections for victims”; 2) failure to provide guidance
in the identification process”; 3) “the lack of a review or supervisory mechanism.”
The total disregard of the essential actor “the trafficked person” in the Protocol is
closely linked to the structural factors that originate human trafficking. This reveals the
vicious circle and the distance between on the one hand the UN rhetoric on economic, social
and cultural rights and equal and non discriminatory treatment and on the other hand the
lack of enforcement of the provisions of international law which continue to be based upon
conceptions of state sovereignty and non interference, carried out mainly by male UN
assemblies. “In so doing the Protocol compromises the gains that have been made to ensure
gender equality through the international legal system” (Coontz and Griebel 2004 p. 52).
Furthermore, its particular focus on organised crime and penalization of the individual
offender does not capture the “whole picture” of trafficking in the sense that it does not
address the role of the state or government officials in “committing or tolerating trafficking”
and holding them responsible either nationally or internationally. The complicity of the
government in trafficking is frequently prevalent and systemic that it reflects on
governmental policy or compliance (Bruch 2004).
16
2. The European Response to Human Trafficking
2.1. The Response of the Council of Europe
In 1950, the Member States of the Council of Europe adopted the European
Convention to protect human rights 23 . The most important feature of the Convention, in the
context of trafficking, is that it allows individuals, legal persons, groups of individuals or
Non-Governmental Organisations (“victims requirement”) to bring claims directly to the
European Court of Human Rights 24 against States for human rights abuses under Article 34
(Steiner, Alston and Goodman 2008). To be admissible (Article 35) the complaint must be
well framed, not be anonymous or represent an abuse of the right of petition. In addition, all
national remedies must have been exhausted; it must be presented within six months of the
final decision of the domestic court as well as preclusion of a concurrent jurisdiction. While
claims must be brought against States on the basis of treaty violations a victim of trafficking
may bring a claim against an individual trafficker or pimp “if the violation is presented as
State’s failure to execute legislation essential to protecting victims under the European
Convention” (Corrigan 2001 p. 5). Furthermore, the European Court of Human Rights has
held that to bring a complaint the individual must be “affected by the violation” not
requiring the “actual harm of the victim, as long as the applicant risks being directly
affected by the alleged violation 25 ” (Toepfer and Wells 1994 p.10). Even though the
European Convention does not evidently tackle the issue of trafficking in women and sex
exploitation Article 3, on the protection against torture and Article 4, on the prohibition of
slavery and forced labour establishes protection for trafficked victims. In addition, Article 14
reiterates this protection by securing the enjoyment of rights and freedoms of the
The 1950 European Convention on Human Rights is available at:
http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm
24 The streamlining process that occurred with Protocol nr 11 of the European Convention on Human
Rights allowed
25 Johnston v. Ireland, 9 Eur.Ct. R.R. (ser. A) at 216 (1986).
23
17
Convention for everyone without discrimination based on sex and race (Corrigan 2001;
Toepfer and Wells 1994) 26 .
Despite its weaknesses with regards to victim’s protection rights and support
actions, the Palermo Protocol gave the international community a definition that reached a
degree of international consensus (Van den Anker 2004). Other international instruments
have been developed to fill the gaps of the Palermo Protocol most notably, the 2005 Council
of Europe Convention on Action Against Trafficking in Human Beings 27 . The Convention takes
the definition of trafficking as the starting point but adding value to the Palermo framework
considering trafficking in human beings as a human rights violation and its inclusion of a
gender perspective. As a result, Chapter III of the Convention entrusts State parties to take
measures to protect and promote the victims rights in the framework of guaranteeing
gender equality. While the Palermo Protocol ignored the issue of identification of victims
the Council of Europe Convention particularly addressed this point since it is essential to
identify (Article 10) the actual victims because it entitles him/her to basic fundamental
rights (right to safety; right to compensation; right to residency; right to assistance) (Mattar,
2006). In fact, one of the breakthroughs of the Convention “is its emphasis on treating
persons who are trafficked victims” (Article 6) in the form of medical, legal, psychological
and social aid (Council of Europe 2008) 28 . This assistance and support comprises an
“There are several European cases that support the proposition that the European Convention
prohibits trafficking of women. For example Cyprus vs Turkey [App. Nos 6780/74, 4 Eur. H.R. Rep
482 (1982) (Commission Report)] the European Commission held the rape of Greek Women by
Turkish soldiers and officers during Turkish occupation of Greece to be inhumane treatment under
Article 3 of the European Convention. The Greek government alleged that these mass rapes were
forced prostitution. The European Commission concluded that Turkey violated Article 3 by failing to
prevent such actions.” (Corrigan 2001 p. 5). Another case which established that discrimination
against a particular group may be “degrading treatment” under Article 3 of the European
Convention was in the East African Asians v. United Kingdom (Toepfer and Wells 1994).
27 The 2005 Council of Europe Convention on Action Against Trafficking in Human Beings is
available at:
http://www.coe.int/t/dg2/trafficking/campaign/Source/PDF_Conv_197_Trafficking_E.pdf
28 Speech by Maud de Boer-Buquicchio, Deputy Secretary General of the Council of Europe. OSCE
Panel Session: “National and Regional Responses: Action Plans, Coordinating Structures, National
Monitoring Mechanisms” Vienna, 14 February 2008. Available at:
26
18
obligatory minimum 30 days reflection period which allows the victim to stay in the country
“regardless of whether he or she co-operates with the police” (Council of Europe 2008).
The above Convention aims at creating a legal framework/base for cooperation
between European countries and beyond. It is designed to prevent, protect and assist
victims of trafficking, penalise traffickers, and foster international cooperation not only in
criminal matters but also in trafficking prevention. The Convention commits state parties to
take responsibility of the whole process of trafficking from recruitment in the country of
origin, state of transit, to the exploitation in the country destination. It entails “positive state
responsibility” going beyond the mere individual criminal responsibility of traffickers and
clients. In doing so the Convention wants to strengthen cooperation between national
bodies responsible for preventing and combating trafficking, and obliges the coordination
and actions between public agencies or government departments suggesting the
development of specific bodies for this purpose as well as the appointment of special
national rapporteurs or other mechanisms to monitor “anti trafficking activities of state
institutions and the implementation of national legislation requirements” (ibid). The
Convention also provides for the setting up of an “independent autonomous monitoring
mechanism” called Group of Experts against Trafficking in Human Beings (GRETA) which
will monitor the implementation of the Convention obligations, regularly publish evaluative
reports about the measures carried out by the State parties and make recommendations in
case of non compliance to “step up [the State Parties] action” 29 . Finally, the Council of
Europe Convention recognises more explicitly than the Palermo Protocol the importance of
civil society organisations (Article 16; 28 and 35) in the prevention and protection of victims
(identification and assistance) and encourages the development of partnerships with
http://www.coe.int/t/secretarygeneral/SGA/speeches/2008/C_14022008_OSCE_National_and%20
_Regional_responses_EN.asp
29 Alongside this technical body there will be another governmental body encompassing the
representatives in the Committee of Ministers of the Parties to the Convention and representatives of
Parties non-members of the Council of Europe.
19
national public and private actors. The Convention entered into force 1 February 2008 and
has to date 22 signatories and 16 ratifications/accessions 30 .
2.2. The Response of the European Union
In 1999 during the Tampere European Council trafficking in human beings formally
entered in the agenda of the European Union. Several European Parliament reports and
studies that have been made public since then have raised awareness of the problem
(European Parliament 2002). The European Union (EU) has in response developed several
programmes to support civil society organisations to help develop trafficking prevention
and protection actions, for example, Stop I and II 31 (to help prevent and combat trade in
human beings and all forms of sexual exploitation) and Daphne I; II and III32 (programme to
combat violence against children, young people and women). More recently, the EU
adopted the AGIS programme which aimed at enhancing judicial and police cooperation in
criminal matters and in the fight against crime, which has now been replaced by two other
new programmes dealing in part, with the same issues 33 .
At the policy level the EU passed in 2002 a Framework Decision on Combating
Trafficking in Human Beings 34 stressing the need to develop a common legal and judicial
approach throughout the EU to prevent and combat human trafficking building on “existing
instruments used to combat trafficking in human beings”. In this framework decision the
EU not only defines human trafficking (in the same line as the Palermo Protocol) but also
Information on the signatory countries is available at:
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=197&CM=1&DF=&CL=ENG
31 See for further developments about Stop:
http://ec.europa.eu/justice_home/funding/expired/stop/funding_stop_en.htm
32 See for further developments about Daphne:
http://ec.europa.eu/justice_home/funding/2004_2007/daphne/funding_daphne_en.htm
33 See for further developments about AGIS:
http://ec.europa.eu/justice_home/funding/2004_2007/agis/funding_agis_en.htm
34 The 2002 EU Council “Framework Decision on Combating Trafficking in Human Beings” is
available at: http://europa.eu/scadplus/leg/en/lvb/l33137.htm
30
20
establishes penalties (penal framework) for those that instigate or commit trafficking
“provided for by national legislation [which] must be "effective, proportionate and
dissuasive." The Framework decision also introduces jurisdiction criteria in case of conflict
of different jurisdictions so that the crime does not go unpunished 35 . Later in 2004, the EU
Council adopted Directive 2004/81 on the residence permit issued to third country nationals
who are victims of trafficking in human beings or who have been subject of an action to
facilitate illegal immigration, who cooperate with competent authorities. According to this
Directive victims of trafficking are granted “a period of rest and reflection” followed by a six
month residency permit (which can be renewable). This “victim centered approach” gives
the individual the devoted importance in the context of trafficking outlining the obligations
of the State to guarantee a minimum standard of living to the victim. This Directive is of
extreme importance because Member States were obliged to incorporate it into national law
two years after its publication 36 . Non compliance gives the European Commission the
power to refer that country to the European Court of Justice after several referrals.
More recently the inclusion of the 2000 Charter of Fundamental rights of the
European Union (which explicitly prohibits slavery or servitude, exploitation and
trafficking of human beings under Article 5 37 ) in the Treaty of Lisbon 38 may trigger further
According to the 2002 EU Council “Framework Decision on Combating Trafficking in Human
Beings “A Member State will have jurisdiction where:
-The offence is committed on its territory (territoriality principle);
-The offender is a national (active personality principle);
-The offence is committed for the benefit of a legal person established in the territory of that Member
State.
The second criterion is particularly important for States which refuse to extradite their nationals,
since they must take the necessary measures to prosecute their nationals for offences committed
outside their territory”. Available at: http://europa.eu/scadplus/leg/en/lvb/l33137.htm
35
The deadline for implementation was further emphasised in the European Commission’s Council's
plan of Action on Best Practices, Standards and Procedures for Combating and Preventing
Trafficking in Human Beings. Available at:
http://ec.europa.eu/justice_home/fsj/crime/trafficking/fsj_crime_human_trafficking_en.htm
37 See 2000 Charter of Fundamental Rights of the European Union: “Article 5
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
36
21
EU member state action in this area and the development of case-law in the area of human
trafficking. With the ratification of the Treaty of Lisbon among member States the Charter
becomes judicially enforceable.
2.3 The Critique of the European approach
The 1950 European Convention on Human Rights has been criticized because of its
procedural limitations especially being ineffective with regards to eliminating trafficking in
women. Even though the Convention gives the individual trafficked victim the ability to
seek legal remedy against the violators of the treaty, an individual petition is only allowed if
the State charged with the committing the offense formally approves the authority of the
European Court of Human Rights in receiving such complaint. Another barrier is the
admissibility criteria to receive a complaint by the ECHR (Article 27 Committees, Chamber
and Grand Chamber) that can only be allowed if the individual has previously exhausted all
national remedies, (which deepening on each State (especially civil law based legal systems)
can take more than 5 years before a final decision is made taking into account the amount of
permissible appeals therefore, discouraging the victim of taking its case any further). The
ECHR has also “refused to hear several complaints because they alleged violation against
individuals rather than governments” (Corrigan 2001 p. 11) acknowledging that ninety
percent of petitions received are deemed to be inadmissible and case procedural
adjudication takes approximately five years (Dumas, 1990). Thus these limitations may act
as barriers and reduce the opportunity for a trafficked woman to have her complaint
admissible to the Court.
2. No one shall be required to perform forced or compulsory labour.
3. Trafficking in human beings is prohibited. Available at:
http://www.europarl.europa.eu/charter/pdf/text_en.pdf
38 The 2007 Treaty of Lisbon will amend the current EU and EC treaties. Available at:
http://europa.eu/lisbon_treaty/glance/index_en.htm
22
A further limitation that a trafficked victim may encounter is the level of
enforcement of the ECHR which can only be based in human rights contained in the
European Convention as it is not authorised to enforce any other Conventions (such as
CEDAW, 1949 Slavery Convention; etc.)(Corrigan 2001). The lack of clear provisions
addressing the issue of trafficking in women or forced prostitution in the Council of Europe
Convention is another obvious gap (Hauber 1998). “Before a prostitute can bring a
successful action, this [European] Convention must first recognise the right of women to
protect themselves from trafficking” (Toepfer and Wells, 1994 p. 11).
More recently, the Council of Europe Convention on Action Against Trafficking in
Human Beings has brought many innovations with regards to the protection of victims of
trafficking and criminalisation of the offender. However, the European Convention
recognises the difficulty of “proof of knowledge” (actual and constructive knowledge) i.e.
finding sufficient evidence to treat a certain type of conduct as a “criminal offence” (Council
of Europe 2005, 234) and “calls upon States to consider criminalizing the use of services of a
victim with the knowledge that the person is a victim of trafficking human beings. Such
services maybe sexual, but it may also include labour services or providing a human organ.”
(Mattar, 2006 p. 409-410). The success of this Convention is also dependent in the number of
countries that will ratify it (today, only 16 out of the 47 member states of the Council of
Europe have ratified the Convention), on the role of GRIDA 39 in monitoring the
implementation (which will be established 1 February 2009) and the proper enforcement by
State parties. An analysis on the implementation of the Convention by the ratifying State
parties will be required in the future.
See Amnesty International (2007) “Council of Europe Convention against Trafficking: 14
Recommendations to ensure the election of independent experts of the highest calibre to monitor
implementation”. Available at:
http://asiapacific.amnesty.org/library/Index/ENGIOR610252007?open&of=ENG-373
39
23
The critique of the European Union approach with regards to trafficking of human
beings especially women mainly lays within the 2004 Council Directive where residency
status given to the victim is dependent on the cooperation with the competent authorities
for prosecution (victims of sexual violence maybe reluctant to take such a step). “This
conditional element undermines the support to the victims of trafficking. Overall, the
European legal framework fails to address the main causes of trafficking, which is the
demand for commercial sex and women’s unequal status and access to resources in their
countries of origin” (Melchior and Delorme 2007 p. 4). In fact, the Directive barely mentions
sexual violence. Those victims that will benefit of the system will be the “useful ones” i.e.
those which are capable and willing to cooperate with the system to capture the offenders.
The system disregards those with little information “(those drugged, isolated or children”)
or those with little reason to cooperate, for instance due to having relatives who have been
threatened by traffickers in the country of origin or having the economic imperative to work
no matter what, are hardly candidates for success” (Ascola 2007 p. 94).
Even though all Member States have approved legislation that penalises trafficking
for sexual exploitation the number of convictions within the European Union is still low and
some cases government corruption has been reported 40 . In addition, some Member States
still treat victims as criminals or illegal migrants subject to deportation going against the
spirit of the Directive which obliges Member States to legally grant, reflection periods,
assistance and support (housing, legal, medical and psychological services, access to the
labour market, etc.) (Lindo 2006). Some scholars have criticised the Directive as it creates
loopholes that can be cleverly misused by “bogus” trafficking migrants making Member
States (which previously had more generous provisions than those outlined in the Directive)
According to Lindo (2006) all Member States apart from Estonia, have passed legislation
criminalising trafficking for sexual exploitation. With regards to the number of convictions these
ranges from no convictions to 170 and corruption was reported in at least six cases thus, confirming
the low number of convictions.
40
24
to reduce them as not to attract unwanted immigrants. “In a migration setting protecting the
rights of trafficking victims through residence permit is, as regards the Member States
against their actual immigration policies that seek to discourage migration”. (Ascola, 2007 p.
93).
IV- Trafficking in Women and the International Community: Quo Vadis?
At the time where the volume of international trafficking for sexual exploitation has
grown more than ever it becomes urgent that existing international and regional treaties
addressing or (partly addressing) trafficking in women to be continuously enforced and
monitored. Not only a regional but an international “positive state responsibility” 41 must be
in order to prevent and protect trafficking in women. The evolution of the legal framework
of trafficking in women has shown that the international community is concerned with this
problematic.
The international community must think about the global harmonisation of
trafficking legislation (crime criteria; sanctions; rights and status of trafficked victims) as the
answer to this global concern (Lehti and Aromaa 2006). Within the context of trafficking in
women States cannot continue “resort to the [national] criminal law to address women’s
rights issues” (Coontz and Griebel 2004 p. 55). Intensified cooperation not only at regional
but at international level means that States must be willing to give up their sovereignty (or
at least parts of it) to combat human transnational trafficking. When states can no longer
guarantee the protection and safety of their citizens “they loose their legitimacy of sovereign
powers” (Rijken 2003 p. 270). A dual system approach can be suggested one that leaves the
“Indeed, for instance the practice of the European Court of Human Rights affirms that (Article 1
together with) certain of the Convention rights can entail a positive obligation often involving the
duty to create and implement legislation (the obligation to protect life by law, the obligation not to
provide inhuman conditions and the duty to guarantee a fair trial and effective remedies) can involve
a duty, through law, to protect people from such treatment. Implicit positive obligations have also
been read into the duty to secure other rights listed in the Convention, when the effective protection of
a right so demands” (Askola, 2007 p. 136-137).
41
25
operational powers to national state authorities, acknowledging and allowing an
international monitoring institution (similar to GRETA under the 2005 Council of Europe
Convention on Action Against Trafficking in Human Beings) that would also include
“coordination of the prosecution of trafficking cases, the monitoring of the national
authorities in this regard, and initiating criminal proceedings against those suspected of
trafficking in persons before national courts. (…) As the impact of transnational crime and
thus trafficking is on the increase, the cooperation between states must be further intensified
in order to maintain the legitimisation of sovereignty. This means that states will have to
share their powers in criminal matters” if they are truly committed to combat intra and
transactional trafficking (Rijken 2003 p. 270).
One has noted that despite the advantages of the Palermo Protocol in defining
trafficking and providing a law enforcement framework (“rights-based measures”) it is not
a human rights treaty but more a transnational cooperation agreement to combat organised
crime. The lack of an enforcement or supervisory mechanism, absence of mandatory
protections and guidance in the identification process undermines States political
commitment and effectiveness of the Protocol (Gallagher 2001). The international
community should in fact look at ways to globally deploy the human rights framework that
the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings
portrays, putting the rights of the victim (especially its protection and residency status
regardless of the cooperation with national authorities) in the forefront of combating human
trafficking and look at ways to ensure a better enforcement of the rights of women outlined
in the CEDAW. In fact, “CEDAW is the one international human rights treaty to mention
trafficking in women, as it is the instrument that seeks to remedy the original myopic vision
of human rights regarding gender discrimination” (Askola 2007 p. 138).
26
The international community should furthermore, take a holistic approach to
trafficking of human beings especially of women of all ages. This approach urges states to
identify the “root causes” of trafficking which in most cases includes a complex set of
economic and social factors that violate women’s economic and social rights, discriminate
them and channel a number of women into poverty limiting their employment
opportunities and active participation in society 42 . States must consider the whole
trafficking process i.e. from the victim’s state of origin, the state of transit and to finally the
recipient/destination state where all states have the “responsibility to protect” fundamental
rights that have been recognised by international human rights treaties 43 (Askola, 2007) and
must be willing to be accountable for their non action or compliance with trafficking of
human beings (Lehti and Aromaa 2006). Whether prostitution should be legalised or not is a
question beyond the scope of this essay however, in the case where states have legalised
prostitution it is imperative that they have more supervision and that no element of
exploitation of women should be allowed. As suggested in the 2005 Council of Europe
Convention adequate structures must be put in place at national level to identify trafficked
victims and avoid their criminalisation as illegal immigrants subject to immediate
deportation and barred of their fundamental rights. “Trafficking in persons should be made
a special offense, and victims of trafficking should be given legal rights to help and
It has been suggested that states involved in the trafficking process (i.e. from the state or origin but
also transit and destination) have failed to realise economic, social and cultural rights of women (e.g.
education for women and girls, average standards of living, working conditions) which allied with
discrimination has put women in a vulnerable position susceptible of taking risks and being
trafficked (Askola 2007).
43 “The International Covenant on Civil and Political Rights and the European Convention for the
Protection of Human Rights and Fundamental Freedoms set out a number of relevant fundamental
rights and freedoms such as the right to life, the prohibition of torture and inhuman/degrading
treatment, the prohibition of slavery, servitude and forced labour, the right to liberty and security of
person, the right to effective remedy, the right to equal protection of the law and the prohibition of
discrimination in the enjoyment of rights. (…) Similarly, ILO Conventions on forced labour have been
invoked with regard to trafficking in women for involuntary servile work. And finally, the 1990
International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families (ICMV) is increasingly mentioned, as it explicitly extends the scope of fundamental
human rights to be granted to all migrants, both documented and undocumented” (Askola, 2007 p.
136)
42
27
protection. Governments should also set up agreements to facilitate victims return to their
native countries if they wish, and victims should be granted, if necessary, temporary
residence status on humanitarian grounds” (Lehti and Aromaa 2006 p.46). Anti-trafficking
measures should be put in place against violations and provide victims with effective
remedies protecting them and avoiding “re-victimisation”. A system for intensified
cooperation must be facilitated at a European level but especially at international level.
Finally, the definition of trafficking must also be further expanded. There is a need to
further investigate and “reconceptualise female trafficking” moving forward from the
Palermo Protocol’s and CEDAW’s Committee definition (Bruch 2004) that regards
trafficking mainly as sexual violence against women and consider other forms of female
trafficking “especially traffic for economic exploitation as domestic servants and as workers
in agriculture, construction, and sweatshop industries, [which] are as common as trafficking
for sexual exploitation” (Lehti and Aromaa 2006 p. 45 and Cole 2005). “It may be
appropriate to consider different definitions for different contexts” (Bruch 2004 p. 21).
V- Conclusion
It is evident that trafficking in women is an international problem which requires
international solutions and actions. Even though the international community is concerned
about this problematic it is far away from establishing a “universal” coordinated action to
combat trafficking in women. To ensure an effective and comprehensive response to human
trafficking an international Convention Against Trafficking in Human Beigns should be in
order i.e. one that maximises the advantages of the (described) international and regional
instruments available and minimises or eliminates its limitations.
“Thought the predominant approach [with regards to trafficking in women] has
focused on the law enforcement context, labour and human rights concerns have become
28
increasingly prominent at [European and] international level” (Bruch 2004 p.3). Within the
law enforcement framework of the UN Protocol, accountability should be an essential
element to combat international human trafficking which at present cannot be achieved.
“Effective responses to this trade will require holistic, interdisciplinary, and long-term
approaches which address each aspect of trafficking or smuggling cycle and which
explicitly recognise the links between trafficking, national migration policies, and
transnational organised crime. Human rights are not a separate consideration or an
additional perspective. They are common thread which should serve as a foundation and
reference point for all undertakings in this area” (Gallagher 2001 p. 1004).
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