International legal framework - United Nations
The year 2000 marked the signing and adoption of 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), which came into force three years later. 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 work 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.
Although most European countries have signed and ratified the Palermo Protocol, it is difficult to measure whether they are in compliance with it, as the United Nations Convention against Transnational Organized Crime does not have a monitoring mechanism. Currently, different options to instate a mechanism of this type are being discussed in the working group on trafficking in human beings. However, discussions appear to be very difficult and hardly any progress has been made so far. One of the main problematic issues is the involvement of civil society in the monitoring mechanism.