The International Legal Framework


The United Nations

The United Nations obligates States to refrain from committing human rights violations and also to take positive steps to ensure that individuals are able to enjoy their human rights.  A State’s legal obligations are articulated in human rights instruments, such as treaties and conventions.  The UN also drafts politically-binding documents that do not have the force of law, such as declarations and resolutions, but which nevertheless represent important guidelines on States’ obligations.  More information about the United Nations system, human rights documents and enforcement mechanisms can be accessed from the International Law section of this site.

The United Nations addresses trafficking in women from various directions.  First, the UN human rights instruments apply to women and men equally, and are relevant to the kinds of abuses that women suffer in cases of trafficking.  In addition, the UN international standards on the treatment of crime victims also obligate States to protect victims of trafficking.  

Second, of the types of violence against women addressed by this site, trafficking in women was perhaps the first to receive the attention of the UN as a transnational crime.  This section, therefore, includes a historical overview of the UN conceptualization of trafficking, prior to the emergence of an international women’s human rights movement. 

Third, the UN treaties and resolutions that articulate the rights of women are applicable to the situation of trafficking and define trafficking as a form of gender-based violence.  Since the early 1990’s, all major UN instruments on States’ commitment to ensure women the full enjoyment of their human rights and their protection from violence have included specific obligations to combat trafficking in women. 

Finally, in 2000, the UN Convention Against Transnational Organized Crime was opened for signature, along with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.  The Trafficking Protocol contains the international consensus definition of trafficking and sets forth State obligations to prevent trafficking, to protect victims and to prosecute perpetrators of trafficking. 

UN Human Rights Law

States are obligated to protect the rights of trafficking victims under general human rights instruments.  The International Covenant on Civil and Political Rights guarantees women the right to life, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to security of person.  The International Covenant on Economic, Social and Cultural Rights provides such basic guarantees as the right to an adequate standard of living (including food, clothing and housing), the right to the highest attainable standard of physical and mental health, the right to education and the right to favorable work conditions, which includes fair wages, equal pay for equal work and reasonable limitation of working hours.  The International Labor Organization Forced Labor Convention (C29) and the Abolition of Forced Labor Convention (C105) set forth the obligation to suppress all forms of forced or compulsory labor, defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

Trafficked persons are also granted the right to an effective remedy for acts violating their fundamental human rights, as set forth in the International Covenant on Civil and Political Rights.

Under principles of international law, States are obligated to provide adequate support for victims of crimes.  The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power states that victims are entitled to access the justice system and prompt redress.  (Paragraph 4).  Regarding assistance, the Declaration states “Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.  . . .  Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.”  (Paragraphs 14, 15).

Historical Overview of the UN Perspective on Trafficking

The United Nations first responded to issue of trafficking in women in the early twentieth century with a number of treaties that addressed the “white slave trade.”  The UN Special Rapporteur on violence against women, Radhika Coomaraswamy, explains that “[h]istorically, anti-trafficking movements have been driven by perceived threats to the “purity” or chastity of certain populations of women, notably white women” and that early UN treaties focused on the protection of victims and not the punishment of perpetrators and, ultimately, proved to be ineffective.  The League of Nations concluded two treaties on the suppression of traffic in women.  The latter treaty, the 1933 International Convention for the Suppression of the Traffic in Women of Full Age, is notable for provisions that punish traffickers, without regard to whether the victim in some way gave consent.  In 1949, the United Nations consolidated the earlier treaties into the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others.  This convention remains the only international treaty on trafficking, although it has not been widely ratified.  In 2000, the UN drafted a Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, discussed below, which largely supplants the earlier treaty.  The Trafficking Protocol elaborates the UN Convention Against Transnational Organized Crime, viewing trafficking in women in the larger context of transnational organized crime activities, such money laundering, corruption, trafficking in firearms and the smuggling of migrants. 

The 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others is problematic for a number of reasons.  First, the convention does not define trafficking, but equates trafficking with the exploitation of prostitution.  Trafficking in women can take many forms, for commercial sex work and also as forced labor, as domestic servants and as “mail-order brides.”  The difficulties in connecting trafficking and commercial sex work are discussed in the Explore the Issue section of Trafficking. 

Second, the treaty reflects a prohibitionist stance toward prostitution, in which the acts associated with prostitution are criminalized, but not prostitution itself.  Thus, the Convention defers to national law and does not prohibit the prosecution of commercial sex workers themselves.   According to the Special Rapporteur,

The Convention does not take a human rights approach.  It does not regard women as independent actors endowed with rights and reason; rather, the Convention views them as vulnerable beings in need of protection from the “evils of prostitution”.  As such, the 1949 Convention does very little to protect women from and provide remedies for the human rights violations committed in the course of trafficking, thereby increasing trafficked women’s marginalization and vulnerability to human rights violations.  Further, by confining the definition of trafficking to trafficking for prostitution, the 1949 Convention excludes vast numbers of women from its protection.  Documentation shows that trafficking is undertaken for a myriad of purposes, including but not limited to prostitution or other sex work, domestic, manual or industrial labor, and marriage, adoptive or other intimate relationships.

The 1949 Convention sets forth obligations to State parties to take and encourage “health, social, economic and other related services, measures for the prevention of prostitution and for the rehabilitation and social adjustment of the victims of prostitution” but does not addresses the underlying factors that contribute to trafficking, such as women’s lower economic status, demand for women’s sexual services, organized crime and internal conflict.  Finally, the 1949 Convention contains provisions for the repatriation of trafficking victims but also anticipates that trafficking victims may be deported in accordance with national law.  Deportation is a measure that does not take into account the risk of returning a woman to her country of origin and does not consider possible hardship inherent in the situation she was originally seeking to leave. 

The Report of the Special Rapporteur on violence against women on trafficking in women, women’s migration and violence against women, submitted in to the UN Commission on Human Rights, E/CN.4/2000/68, 29 February 2000, includes an overview of the United Nations law on trafficking in women and a critique of the 1949 Convention.

While a number of UN declarations and conference reports on the broad issue of women’s human rights made mention of the issue of trafficking in women, the UN legal framework for describing the phenomenon of trafficking in women changed little before the early 1990’s.

Law and Policy on Trafficking and Women’s Human Rights

The United Nations began to approach trafficking in women as a human rights violation in the early 1990’s.  As outlined above, prior to this time, reiterations of the need to address trafficking equated the problem with forced prostitution.  The Declaration on the Elimination of Discrimination Against Women, adopted by General Assembly resolution in 1967, for example, mentions only that, “All appropriate measures, including legislation, shall be taken to combat all forms of traffic in women and exploitation of prostitution of women.”  (Article 8).  The subsequent Convention on the Elimination of All Forms of Discrimination Against Women, which entered into force in 1981 and creates binding obligations for signatories, added little to the earlier 1949 Convention or Declaration on the Elimination of Discrimination Against Women, requiring State parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”  (Article 6).

The report of the Third World Conference to Review and Appraise the Achievements of the United Nations Decade for Women, which was held in Nairobi in 1985, included women victims of trafficking and involuntary prostitution as an area of special concern.  At the time of the Third World Conference, trafficking discourse was still limited to the exploitation of women as prostitutes, and the UN urged State parties to the 1949 Convention to enact measures to combat trafficking for the purposes of prostitution as well as attendant crimes, such as violence and drug abuse.  The UN also emphasized the need for States to assist prostitutes with reintegration, including the provision of economic opportunities, training, employment, self-employment and health facilities for women and children.

The Convention on the Elimination of All Forms of Discrimination Against Women, as mentioned above, articulates a need to combat trafficking but does not directly address violence against women generally.  The Committee on the Elimination of Discrimination against Women clarified that trafficking is a form of gender-based violence when it adopted General Recommendation No. 19 in 1992, which highlights the interconnections between trafficking in women, women’s lower economic status, armed conflict and violence.  General Recommendation 19 explains, “Poverty and unemployment increase opportunities for trafficking in women.  In addition to established forms of trafficking there are new forms of sexual exploitation, such as sex tourism, the recruitment of domestic labor from developing countries to work in developed countries and organized marriages between women from developing countries and foreign nationals.  These practices are incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity.  They put women at special risk of violence and abuse. . . .  Wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.”  (Articles 14; 16).  The Committee on the Elimination of Discrimination against Women also made specific  recommendations to State parties to the Convention to prevent and punish trafficking and to include information about trafficking in periodic reports that describe “the extent of [the] problems and the measures, including penal provisions, preventive and rehabilitation measures that have been taken to protect women engaged in prostitution or subject to trafficking and other forms of sexual exploitation."  (Article 24(h)).  Although General Recommendation 19 does not have the force of law, it is a pivotal UN statement on States’ obligation to protect women from violence.

In 1993, 160 countries attended the UN Second World Conference on Human Rights, held in Vienna.  This conference achieved significant changes in the perception and understanding of women’s human rights in the United Nations system and around the world.  The Vienna Declaration and Program of Action states “the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. . . . Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated.  This can be achieved by legal measures and through national action and international cooperation . . . .”  The Vienna Declaration represents an articulation of trafficking as gender-based violence, without equating it to forced prostitution or raising issues of consent.  (Articles 18; 38). 

The Second World Conference on Human Rights also led to the creation of three important instruments, which have advanced women’s human rights and address the issue of trafficking in women: the UN Declaration on the Elimination of Violence Against Women, the creation of the position of a UN Special Rapporteur on Violence Against Women and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, "Convention of Belém do Pará.”

The Declaration on the Elimination of Violence Against Women, adopted by General Assembly Resolution six months after the Second World Conference on Human Rights in 1993, expands upon the articulation of violence against women of Vienna Declaration and Program of Action, stating “Violence against women shall be understood to encompass, but not be limited to, the following: . . . Physical, sexual and psychological violence occurring in the family . . . Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.”  While illustrating the connections between trafficking and forced prostitution, the Declaration on the Elimination of Violence Against Women underscores the level of violence that women victims of trafficking experience.

The 1995 Beijing Platform for Action defines trafficking in women as a form of gender-based violence (Paragraph 100) and represents a commitment by governments to enact preventative measures to protect women from trafficking, such as the enforcement of laws, the provision of legal protection and medical assistance.  (Strategic Objective C.2 108 (q)).  The document emphasizes the need for States to address the “root factors, including external factors, that encourage trafficking in women and girls for prostitution and other forms of commercialized sex, forced marriages and forced labor in order to eliminate trafficking in women, including by strengthening existing legislation with a view to providing better protection of the rights of women and girls and to punishing the perpetrators, through both criminal and civil measures.”  (Strategic Objective D.3 131(b)). The Beijing Platform for Action also encourages States to implement the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of Others and other relevant instruments.  (Strategic Objective C.5. (123)). 

In 1996 and 1997, the Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, traveled to Eastern Europe to gather information on violence against women, including trafficking.  Ms. Coomaraswamy’s 1996 Report on the mission of the Special Rapporteur to Poland on the issue of trafficking and forced prostitution of women (E/CN.4/1997/47/Add.1) provided important information about the dynamics of the problem, including information about recruitment methods, trafficking routes and the difficulty of prosecuting traffickers under national law.  The Special Rapporteur issued a later report on Violence against Women (E/CN.4/1997/47), in 1997, which provided a broader analysis of the problem of trafficking.  Ms. Coomaraswamy points out that trafficking had previously been conceptualized as prostitution but, in fact, women are trafficked into “slavery-like conditions as prostitutes, domestic workers, sweatshop laborers or wives.”  She states that trafficking routes duplicate migration routes and are not necessarily only from South to North but occur regionally and within States.  The report of the Special Rapporteur also points out that because trafficking involves cross-border movement, it is an issue that should be addressed by international standards and consensus.

The Trafficking Protocol and Recent Initiatives

By the late 1990’s, it was apparent that the existing 1949 Convention was inadequate for addressing the complex problem of trafficking in women and there was a clear need for consensus around a standard definition.  In December 2000, at an international conference in Palermo, Italy, the UN Convention Against Transnational Organized Crime was opened for signature.  This treaty, along with its supplementary protocol, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, (Trafficking Protocol) define signatory countries’ obligations on trafficking in women.  The Interpretative Notes (Travaux Préparatories) to the Trafficking Protocol also set forth government commitments to combat trafficking. 

The International Human Rights Law Group, a U.S. human rights organization, has created a single annotated guide which explains and analyzes the three UN authoritative texts: the Convention Against Transnational Organized Crime, the Trafficking Protocol and the Interpretive Notes.  The Annotated Guide to the UN Trafficking Protocol is a “tool to assist advocates in the development of a human rights framework for national anti-trafficking laws and policies.”  The Annotated Guide includes excellent analysis of where provisions of the Trafficking Protocol should be modified in the creation of domestic anti-trafficking law, in order to achieve greater protection for victims’ human rights and facilitate prosecution of traffickers.  Some of the divergences between the Trafficking Protocol and national legal remedies are also discussed in the Trafficking Law and Policy section on domestic legislation.

As described by the International Human Rights Law Group, the Trafficking Protocol is primarily a law enforcement instrument.  It contains strong language on States’ obligation to create law enforcement provisions at the national level.  However, provisions regarding protection of victims’ human rights are weak.  The Protocol uses language that States shall undertake these measures merely “in appropriate cases” and “to the extent possible.”  Despite the weaknesses in human rights protections offered by the Protocol, it represents a strategically important re-conceptualization of trafficking in women.

First, the Trafficking Protocol defines “trafficking in persons” as “the recruitment, transportation, transfer, harboring 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 is defined as “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal or organs.”  (Article 3).  This definition is broad and detailed and represents the accepted international consensus that the key element of trafficking is the exploitation of the victim, rather than the movement of victim across borders or “means” by the trafficker involves the victim in trafficking. 

The Trafficking Protocol’s language on sexual exploitation is also significant.  On one hand, the Trafficking Protocol acknowledges that trafficking in women is frequently for the purposes of prostitution and sexual exploitation.  On the other hand, the Protocol expands the previously-accepted definitions of trafficking to include all forms of forced labor, slavery and servitude, even within a country’s borders.  Finally, the drafters of the Trafficking Protocol deliberately left the terms “exploitation of the prostitution of others” and “sexual exploitation” undefined.  This was the only way to achieve consensus among countries that criminalize prostitution and those which have laws that regulate (and decriminalize) adult sex work.  More information about the Debate over the Definition of trafficking can be found in the Trafficking: Explore the Issue section of this site.

Article 3 of the Trafficking Protocol further states that “the consent of a victim of trafficking in persons to the intended exploitation . . . shall be irrelevant where any of the means set forth [above] have been used.”  This provision is consistent with international legal norms dictating that a person cannot legally consent when force, coercion, deception or abuse of power have been used.  The Interpretive Notes (Travaux Préparatories) to the Protocol clarify that a person in a “position of vulnerability” refers to “any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved."  By definition, if the crimes of forced labor, slavery or servitude have occurred, consent is irrelevant.  Thus, the very common situation in which a woman consents to certain specific actions, such as using false documents, working illegally abroad or working as a prostitute, will not allow a defendant to argue that she consented to be trafficked. 

Article 2 of the Trafficking Protocol, the Statement of Purpose, sets forth the goals of the document:

To prevent and combat trafficking in persons, paying particular attention to women and children;
To protect and assist the victims of such trafficking, with full respect for their human rights;
To promote cooperation among States Parties in order to meet those objectives.

Significantly, the Protocol articulates a need for State Parties to cooperate.  States should cooperate across borders on the following actions, outlined in the Trafficking Protocol: assistance and protection of victims (Article 6), repatriation of victims (Article 8), information exchange and training (Article 10) and border measures (Article 11).  Effective measures to combat trafficking require harmonized efforts by national governments

As mentioned above, the Trafficking Protocol is not a human rights instrument, yet it does contain an obligation to protect the rights of and provide assistance to trafficking victims, consistent with international human rights standards.  Such standards are found in human rights instruments of the United Nations and the European regional system, as discussed in the section on regional law and standards.  The Protocol thus emphasizes the importance of protecting trafficking victims and not labeling them criminals.

The relatively weak human rights language of the Trafficking Protocol is not reflective of an overall UN policy on trafficking victims’ human rights.  In fact, the Recommended Principles and Guidelines on Human Rights and Human Trafficking, issued by the High Commissioner for Human Rights in May 2002 sets forth the primacy of human rights, which “shall be at the center of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims.”  While not legally binding, the Recommended Principles are a document that is politically influential.  The document contains eleven recommended guidelines, including one on the promotion and protection of human rights, which begins “Violations of human rights are both a cause and a consequence of trafficking in persons.  Accordingly, it is essential to place the protection of all human rights at the center of any measures taken to prevent and end trafficking.  Anti-trafficking measures should not adversely affect the human rights and dignity of persons and, in particular, the rights of those who have been trafficked, migrants, internally displaced persons, refugees and asylum-seekers.”  Thus, when read in conjunction with the Trafficking Protocol’s purpose, the Recommended Principles provide advocates with useful guidelines on how to shape domestic law and policy.

In another recent initiative, in July 2002, the Rome Statute of the International Criminal Court entered into force.  Within the statute’s definition of “crimes against humanity,” the Statute defines “enslavement” as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”  (Article 7).  The inclusion of enslavement, in the form of trafficking, in the Rome Statute indicates the high priority that the UN has given to addressing the crime of trafficking in women.

Trafficking in Women: Law and Policy  |  Regional Law and Standards  |  The Domestic Legal Framework  |  List of Law and Policy Documents

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