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Intercultural Human Rights Law Review

First Page

175

Abstract

It is incorrect to say that people trafficking is a breach of human rights for the same reason that it is incorrect to say that 2+2=5: because it is wrong and there is an inherent good in getting things right. This article assesses what, legally, is actually happening when trafficking in human beings (THB) takes place, and considers the practical ramifications arising from that assessment. What actually is THB? The most widely accepted definition is contained in the Palermo Protocol (the Protocol) to the United Nations Convention on Transnational Organised Crime (UNCTOC), which entered into force in December 2003. Article 3(a) provides: "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, servitudeor the removal of organs .... While the definition relates to THB only across States frontiers (because of its adoption as part of UNCTOC) and therefore does not include THB within States, it has received widespread acceptance and the core elements are equally present in THB within States. From the definition, it is evident that THB consists of three elements: the act (recruitment etc), the method (force, etc.) and the purposes (exploitation). When THB occurs it is evident that a victim may be the object of severe exploitation as well as serious criminal offences. Several areas of law may be relevant to THB. Let us consider what actually happens when a person is trafficked - deprivation of their freedom of movement, forced labor, sexual exploitation, sexual, physical and mental abuse, illegal entry to a State, breach of conditions of entry to a State - may all be involved. THB may therefore raise issues of criminal law, human rights, migration law, employment law and anti-vice laws. It is a complex activity, thus a proper understanding of the legal issues requires awareness of the various rules, regulations and regimes that might apply. The principal issue discussed here is whether THB is fundamentally a matter of criminal law or human rights and why this matters. The argument put forward is that it is primarily a matter of criminal law, albeit with a human rights dimension.

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