International Conventional Law: The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
Dr. Mohamed Y. Mattar, Co-Director The Protection Project
Speech delivered on October 25, 2002
At the Globalization, Justice, and the Trafficking of Woman and Children Conference
University of Washington, Seattle, WA, USA
Three days ago, on October 23, 2002, was when I last checked the status of ratification of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
· 109 countries have signed
· 18 countries have ratified it
· The last country to ratify was Estonia
We need only 22 more countries to declare the Protocol as the international law of the world.
This is what Article 17 requires for the Protocol to enter into force -- 40 instruments of ratification.
And to me, reaching that number is important because I believe that the Protocol is a good international legal instrument addressing trafficking in persons. Or at least it is not bad at all. And this is what I would like to address with you this afternoon.
· What is so good about the Protocol?
· What might be considered bad in the interpretations the provisions of the Protocol?
There are 2 issues, good and bad. Let me start with the good.
To me, the Protocol created an international consensus on what we all consider here and elsewhere as "trafficking in persons" or "human trafficking" or "trafficking in human beings."
The Protocol addresses 7 forms of trafficking.
· Trafficking for the exploitation of prostitution of other
· Trafficking for other forms of sexual exploitation
· Trafficking for forced labor
· Trafficking to place somebody in a condition of servitude
· Trafficking for the purpose of enslavement of somebody
· Trafficking for purposes similar to slavery
And
· Organ trafficking or removal of organs from human beings
That, to me, is very comprehensive. And that, to me, includes all forms of trafficking. Especially that the Protocol presents these forms as the minimum which may be included as forms of trafficking.
If you ask me, where is baby trafficking in the Protocol? I will tell you that it is included in the Protocol as a practice similar to slavery. And that is how the travaux preparatories addresses adoption or intercountry adoption or international adoption or illicit adoption.
If you ask me, where is forced marriages or marriages of convenience in the Protocol? Again my answer is that it is included in the Protocol, because the Protocol does not define for us any of these forms. Marriage may be form of slavery, and for that, the Protocol refers us to the 1956 Supplementary Convention on Slavery. In there, marriage is defined as a form of slavery if:
· A husband is paying a sum of money in consideration for the marriage to the parents of the wife OR
· If the wife becomes transferable upon the death of the husband OR
· The wife may be inherited upon the death of the husband
If you ask me, where is sex tourism in the Protocol? Well, it is part of these other forms of sexual exploitation.
If you ask me, where is trafficking for the purpose of pornography in the Protocol? I would tell you, that is another form of sexual exploitation.
But the point is that the Protocol does not make any specific references to these forms of trafficking, whether we are talking about:
Baby trafficking
Bride trafficking
Sex tourism
Pornography
Domestic Service
Or any other form of trafficking
Therefore, it is up to the particular legal system to include any and all of these forms. But what we must emphasize here is that every legal system must recognize all forms of trafficking as a criminal offense.
This means that in a way, the Protocol moved us from prostitution to trafficking. And here, although that shift in focus is good, there is something about this shift which I do not like.
Basically, the Protocol does not address the issue of prostitution except in the context of trafficking.
In fact, this is a step forward from the 1949 Convention on the Exploitation of the Prostitution of Others.
But the Protocol does not consider "use in prostitution" as a form of exploitation and the Protocol, unlike the 1949 Convention, does not warn against the dangers of prostitution only dangers of trafficking.
The Protocol only criminalizes exploitation of the prostitution of others. Of course, I am not going to get into that debate because Protocols or Conventions are about compromises. And that was the compromise they reached in Vienna.
I am also not going to address the other debate on consent. Again, the Protocol reached a compromise on this issue as well
If a person consents, and that person is not a child, there is no trafficking.
However, that consent is irrelevant if the trafficker is using any illegal means.
And another good thing about the Protocol is that it does not confine illegal means to use of force. Any abuse of a position of vulnerability will do.
That is very broad. Because you can argue that economic disadvantage is a form of vulnerability. You can argue that being from a foreign country is a form of vulnerability. And you can also argue that not knowing the language of a foreign country is a form of vulnerability.
This is how U.S. courts address the "Vulnerable Victim Enhancement Doctrine."
A good example is the Castaneda case.
This vulnerability is illustrated in the recent case of United States v. Castaneda, where appellant, a co-owner of the Mood and Music Night Club in Saipan, Northern Mariana Islands, recruited three young women from the Philippines for waiting tables and singing. They were told at the time of their hiring, that their job included "greeting customers at the door of the club with a kiss, sitting with customers and perhaps holding their hands." They signed a booklet entitled "Personnel Rules and Policies" which prohibited employees from engaging in prostitution. However, once hired, they were forced to provide male customers with sexual services in private rooms after being selected by them. Then a prostitute filed a complaint with the FBI, an arrest was made and the defendant was found guilty. The defendant was convicted and sentenced to 12 months imprisonment.
In supporting the application of the "vulnerable victim enhancement" doctrine to this case, Judge Silverman, dissented, stating "The victim in this case was tricked into leaving a foreign country on the promise of a legitimate job. As a direct result of this deception, she was stranded in a foreign country and as found by the district judge, 'couldn't just pack up and go home.' Because the victim was an indentured non-resident alien worker, she could not work elsewhere she was forced to participate in the prostitution activity."
What will happen to the 1949 Convention, I do not know. Will the Protocol supercede the 1949 Convention?
The Protocol does not explicitly provide for termination of the 1949 Convention, but one may argue that the 1949 Convention will go away once the Protocol becomes international law.
The Protocol also is a good international legal instrument because it is the only comprehensive treaty on trafficking.
· CEDAW talks about prohibiting "exploitation of prostitution of women" and "all forms of traffic in women." That is Article 6.
· The Convention on the Rights of the Child talks about "prohibition of sale of children" and "traffic of children for any purpose and in any form." That is Article 35.
But the Protocol addresses about both women and children.
The Protocol also addresses not only about the supply side of trafficking, but about demand. And this is a good thing.
In Article 9 the Protocol provides that State Parties shall adopt or strengthen legislative or other measures such as educational, social or cultural measures, including through bilateral or multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children that leads to trafficking.
And the Protocol also addresses not only about criminalization, but protection and prevention as well.
And that brings me to the bad part.
And that is the part of the Protocol dealing with the protection of the trafficked person.
Although the Protocol provides for some good protective measures, which must be adopted by State Parties, it does not make their obligations mandatory in nature. These obligations are addressed as optional, discretionary.
The Protocol uses the language:
· In appropriate cases
· And to the extent possible under domestic law
State Parties are to provide assistance to the trafficked person in accordance with Article 6.
The same language is used in considering the residency status for the trafficked victim.
· State Parties are to consider granting victims of trafficking temporary or permanent status.
· State Parties are to do that "in appropriate cases."
· State Parties are to take into consideration "humanitarian and compassionate factors."
This language is used instead of saying that "state parties shall be obliged to…"
You see the same problem regarding prevention.
Article 9 states that "state parties shall endeavor to undertake measures such as research, information and mass media campaigns and social and economic initiatives to present and combat trafficking in persons."
Another problem with the protection part of the Protocol is that I would liked to have seen the Protocol providing for the principle of the non-criminalization of the conduct of the trafficked victim, whether that relates to
· Illegal entry into a country
· Working without the proper permit
Or
· Prostitution
This is what you see, for example, under the U.S. law. The trafficker gets 5 years for tampering with the travel document, but the trafficked victim is exempted from any liability as long as her conduct is incident to or caused by the act of trafficking.
And this is what you see in the UN Kosovo Regulation on the Prohibition of Trafficking in Persons:
"A person is not criminally responsible for prostitution or illegal entry, presence or work in Kosovo if that person provides evidence that supports a reasonable belief that he or she was the victim of trafficking."
Also, the Protocol was silent as to the issue of forfeiture of assets. Although an early draft stated that:
"State Parties shall take all necessary and appropriate measures to allow the seizure and confiscation of gains obtained by the criminal organizations from offences covered by this Protocol. The proceeds from such seizure and confiscation shall be used to defray the costs of providing due assistance to the victim…"
But the parent Convention does.
It states that: (Article 14(2))
"When acting on the request made by another State Party in accordance with article 13 of this Convention, State Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate owners."
And the parent Convention, if read in conjunction with the Protocol, and it should be read in conjunction with the Protocol, provides a good and comprehensive approach to trafficking as a transnational crime and as an organized crime.
· The Convention calls for the criminalization of public corruption and that is important in combating trafficking since many instances of trafficking involve corruption of public officials.
· The Convention also calls for criminalization of money laundering and a money laundering legislation must recognize not only drug trafficking, but trafficking in persons for the purpose of confiscation of the proceeds of the crime.
· The Convention also calls for extradition and any anti-trafficking legislation must recognize trafficking as an extraditable offense.
Finally, what is really important is the implementation of these provisions, is the good intentions of State Parties. Only then we would succeed in combating trafficking in persons.
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