Schloenhardt, Andreas; Bevan, Ellen --- "To Ratify or Not to Ratify? Exploring the Barriers to Wider Ratification of the Trafficking in Persons Protocol" [2011] NZYbkIntLaw 5; (2011) 9 New Zealand Yearbook of International Law 161

Last Updated: 8 July 2015

TO RATIFY OR NOT TO RATIFY? EXPLORING THE BARRIERS TO WIDER RATIFICATION OF THE TRAFFICKING IN PERSONS PROTOCOL

Andreas Schloenhardt* & Ellen Bevan**


Abstract

A key aim of the United Nations (UN) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children is to facilitate a consistent and coordinated international response to trafficking in persons. To assist in the achievement of this goal, this article identifies and explores potential barriers to ratification for the remaining 47 non-party states. Using country and region-specific examples, this article details a lack of capacity to implement the Protocol, lack of understanding of the Protocol and its requirements and a lack of political will as the core issues preventing universal ratification.

I. Introduction

The United Nations (UN) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children1 is the first international agreement to universally define and address the phenomenon of trafficking in persons. Unlike earlier treaties relating to trafficking and slavery, the Protocol reaches beyond sexual exploitation to cover all forms of trafficking in men, women and children.2 Supplementing the Convention against Transnational Organised Crime,3 the Protocol focuses predominantly on trafficking in persons as a form of organised crime,4 requiring a coordinated international response including uniform anti-trafficking legislation and prosecution of offenders.5 The Protocol also includes provisions for the prevention of trafficking and for victim protection, although many of these provisions are not mandatory and are often perceived as subsidiary to those addressing prosecution and crime control.6

As of 1 June 2012, the Trafficking in Persons Protocol has 147 States Parties,7 leaving 35 UN Member States that have yet to sign8 and a further 12 that have signed but not ratified.9 To date, technical assistance, research and academic commentary has focused on achieving successful implementation of the Protocol,10 while very little has been done to examine the reasons why a number of states have not signed or not ratified the Protocol. Reservations made by States Parties to individual elements of the Protocol have also not been systematically identified and analysed.

The purpose of this article is to address this research gap by examining various possible barriers to ratification of the Protocol. This article details a lack of capacity by States to implement the Protocol, lack of understanding of the Protocol and its requirements and a lack of political will as the core issues preventing universal ratification. Such analysis will assist individual states and the international community in their goal to achieve wider ratification, ensuring no state falls outside the Protocol’s rubric for a coordinated and cooperative international response to trafficking in persons.

Throughout this article, the most definitive arguments are drawn from first-hand reports of UN proceedings regarding the Protocol’s negotiations and subsequent implementation. Here, the summary of the Protocol’s negotiation debates, the Travaux Préparatoires – detailing concerns expressed by states – and reports by the Working Group on Trafficking in Persons that has been set up by the Conference of the Parties to the UN Convention against Transnational Organised Crime (the Working Group), which examine difficulties encountered upon implementation by States Parties, are most useful. Concerns and difficulties identified in this material may also be faced by many non-party States and may thus provide an explanation for their reservations or hesitations to ratifying the Trafficking in Persons Protocol.

Building on these sources, this article also draws insight from academic commentary and critique surrounding the Protocol and the broader problem of trafficking in persons. The article also engages with more general theories on why States undertake international obligations and comply with international law. Through use of such material, this article goes beyond discussions in an official context, to uncover deeper concerns and attitudes potentially held by non-parties to the Protocol. In the absence of explicit statements by individual states about their objections to the Protocol, the conclusions of this article may be seen as temporary or tentative. The article does not intend to speak on behalf of non-party states and the various issues identified in this article cannot always be generalised to apply to all non-parties.

This article is organised into six parts. Following this introduction, Part II gives a brief overview of the Trafficking in Persons Protocol and the importance of widespread ratification. Part III identifies the non-parties to the Protocol, grouping them by region and by level of development in order to contextualise the following discussion. Part IV examines the causes and circumstances that may explain why these States have not become parties to the Protocol. The general issues identified are examined in the context of country and region- specific examples, demonstrating their potential to explain individual States’ lack of ratification. Following this analysis, Part V looks beyond ratification, outlining action (or inaction) addressing trafficking in certain party and non- party states. These examples highlight an important point: ratification – or lack thereof – does not give a complete picture of a State’s dedication to, or action taken on, the issue of trafficking in persons. The article concludes by identifying those issues discussed that present the most immediate and significant barriers to ratification of the Protocol and by outlining ways to address them.

II. Outline of the Trafficking in Persons Protocol

A. A Framework for Action

The Trafficking in Persons Protocol is the first international instrument to provide a universal definition of trafficking in persons. Under art 3(a) of the Protocol:

“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.

This definition combines elements relating to the acts (recruitment, transportation, ...), means (threat or use of force or other forms of coercion, ...) and purpose (exploitation) of trafficking in persons. In instances that involve the trafficking of minors, art 3(c) states that “the recruitment, transportation, transfer, harbouring or receipt of a child is trafficking, even if one of the means above is not used”.11

During the development of the Protocol, States participating in the negotiations expressed concerns regarding the relevance of victim consent to aspects of the trafficking process, particularly where the victim is voluntarily engaged in prostitution.12 In reconciling this debate, art 3(b) provides that victim consent is irrelevant where one of the means of achieving victim participation is used.13

The Protocol aims to set out a uniform approach to trafficking in persons to be taken by all States and to facilitate international cooperation amongst States Parties.14 It divides its approach into the categories of prosecution, protection and prevention (sometimes referred to as the ‘3 Ps’). With its criminal justice focus, almost all mandatory provisions in the Protocol relate to the criminalisation of trafficking in persons and the subsequent investigation and prosecution of offenders.15 A Model Law against Trafficking in Persons developed by the UN Office of Drugs and Organised Crime (UNODC) in conjunction with the UN Global Initiative to Fight Trafficking (UN.GIFT) provides guidance on this requirement as an example of legislation which may be adopted by States Parties to provide a uniform international response.16

Victim protection provisions were included in the Protocol following an address by the then UN High Commissioner for Human Rights, Ms Mary Robinson, during the negotiations. In her address, Ms Robinson urged states to consider and address the human rights abuses associated with trafficking in persons.17 In contrast to earlier drafts, the final version of the Protocol cites victim protection as one of its core purposes.18 Accordingly, States Parties, in appropriate cases, are required to protect the privacy of victims, provide victims with information on legal proceedings and facilitate consideration of victim views and concerns during criminal proceedings against their traffickers. States Parties shall also endeavour to ensure victim safety in their territory and consider, in appropriate cases, the provision of legal advice, housing, medical and psychological assistance, education, employment and training to victims.19 Further, States Parties shall adopt legislative measures to make victim compensation available. Insofar as possible, repatriation of victims should be voluntary and States Parties are asked to allow victims to remain in their territories in appropriate cases.20

Article 9 of the Protocol requires States Parties to establish policies and programmes to prevent trafficking in persons, such as awareness raising campaigns, research and data collection. States shall also address related issues of the demand that fosters exploitation and poverty, underdevelopment and lack of equal opportunity which increase a person’s vulnerability to being trafficked.21 Further, States Parties shall, where appropriate, provide for inter-country information exchange22 and for the strengthening of border protection measures.23 Finally, States Parties shall provide training to law enforcement, immigration and other officials on prevention of trafficking in persons.24 The Protocol does not set out formal reporting procedures or other arrangements under which States Parties report on the steps that they have taken to implement the Protocol, though the Conference of States Parties and the Working Group on Trafficking in Persons provide informal channels through which States Parties may voluntarily provide such reports and updates.

B. The Importance of Ratification

There are two key reasons to encourage widespread, if not universal ratification of the Trafficking in Persons Protocol. The first is that the international scope of the problem of trafficking in persons requires a global approach, beginning with ratification of the Protocol and finishing upon full implementation. The second is the normative power of ratification in encouraging internalisation of an international rule and thus State compliance with international obligations.

The Protocol frames trafficking in persons as a crime with international scope and a core purpose of the Protocol is to promote cooperation among States Parties in investigation, extradition, prosecution, data collection and research.25 The need for a coordinated international response is also behind the Protocol’s requirement that States Parties adopt the definition of “trafficking in persons” and criminalise the various actions contained within. It has been suggested that countries that do not adopt this definition and corresponding legislation run the risk of becoming safe havens for traffickers,26 providing a “weak link in the law enforcement chain and a magnet for transnational criminal activity”.27 Many Parties to the Protocol have not adopted its definition and prosecution provisions in their entirety.28 Research conducted by Beth Simmons and Paulette Lloyd in 2010 found that ratification of the Protocol increases the likelihood of domestic criminalisation by 43 to 66 percent and that adoption of anti-trafficking legislation and law enforcement (or lack thereof ) in one country, greatly affects the response of neighbouring states.29 For these reasons, ratification should be encouraged, at least as a first step towards further implementation.

Secondly, and more generally, Harold Koh has suggested that international rules are normalised – and thus complied with – domestically through interaction between States, transnational actors, and civil society.30 As noted by Oona Hathaway, this gradual transformation of a country’s practices may occur through membership of a treaty regime which facilitates the interaction anticipated by Koh.31 Hathaway further highlights the function of widespread ratification of a treaty in providing a collective expression of international standards which influences all states to comply.32 These observations may be particularly relevant to the human rights aspect of the Protocol’s protection and prevention measures. Although these provisions allow States Parties considerable discretion to decide what protection and prevention measure they consider appropriate, it may be argued that ratification will provide the first step to general acceptance of, and compliance with, these rules as binding legal obligations.

III. Current Non-Parties

South Asia33 and the Pacific Islands34 are presently the regions with the least number of States Parties relative to the number of countries in these regions. The only country in South Asia to have ratified the Trafficking in Persons Protocol is India, while the only States Parties among Pacific Island nations are Kiribati and the Federated States of Micronesia. East Asia and Africa have seven35 and 1536 non-parties respectively. In comparison, the Caribbean,37 the Middle East38 and Europe39 have very few non-parties.

While it is not possible to establish an unequivocal causal link between level of development and ratification, it is noteworthy that 31 of the 35 non-parties are ranked either medium or low on the United Nations Human Development Index.40

IV. Barriers to Ratification

The potential barriers to ratification of the Trafficking in Persons Protocol can be divided into three broad categories. The first category is a lack of State capacity to implement the Protocol, resulting in reluctance to take on its obligations. This includes (1) a lack of institutional capacity and (2) a lack of financial resources. The second category relates to an actual or perceived lack of understanding of the Protocol and its requirements, which are at times unclear or confusing, thus reducing the willingness of non- parties to ratify. The third category describes a general lack of political will, both to adopt international legal obligations on the issue of trafficking and to address trafficking in all forms as framed by the Protocol.

A. Capacity Concerns

Many States are reluctant to commit to international treaties, such as the Trafficking in Persons Protocol, if they lack the financial and material resources or institutional capacity necessary to properly comply.41

1. Lack of Institutional Capacity

Trafficking in persons is a highly complex international problem without a single, standardised or low-cost solution and combating trafficking requires “extensive and ongoing cooperation and active intervention on many fronts by the state”.42 Where non-parties lack effective governance and institutions to properly implement the Protocol, they are arguably less likely to undertake legal obligations in the first place.43 This problem was identified in the 2005 Conference of States Parties where many developing states expressed the need for technical assistance in implementing various aspects of the Protocol, including the adoption of legislation, law enforcement and investigation, victim identification and training of officials and the judiciary.44 In 2009, the UN Secretary General again highlighted this issue following a systematic collection of views from States, non-government organisations (NGOs), and UN bodies on the effectiveness of anti-trafficking efforts.45 The lack of institutional capacity may not always relate specifically to trafficking in persons, but it often reflects a general lack of capacity to do highly technical work of this sort or a lack of resources to take on the necessary regulatory workload in small or under-resourced states

In response to these concerns, UNODC and other international agencies such as the Organisation for the Security Cooperation in Europe (OSCE), the International Labour Organisation (ILO) and the US Department of State, among many others, provide technical assistance to states ranging from the creation of model legislation, frameworks for implementation, to physical training of law enforcement and judicial officials and facilitation of data collection and information exchange.46 The Working Group on Trafficking in Persons has been set up, inter alia, to explore experiences and difficulties with the implementation of the Protocol. Since its inception in 2008, the Working Group has held three meetings, which were also attended by observers from non-parties.

While these measures may serve as a first step to overcome a lack of institutional capacity in many countries, they may not be enough to overcome deeper problems such as corruption and internal conflict faced by many countries. To that end, the 2011 Trafficking in Persons Report produced by the US Department of State uncovered varying levels of industry or government corruption, especially in many non-party states.47 It is well documented that corruption considerably reduces the effectiveness of government institutions, which in turn, facilitates trafficking in persons.48

Civil conflict and unrest in many countries are further obstacles to the accession to and ratification of international instruments, including the Trafficking in Persons Protocol. For example, nine of the 15 African non- parties are currently experiencing, or have recently experienced, long-term or intermittent civil conflict and unrest.49 The same may be true for some South Asian countries and Afghanistan. Governments dealing with internal conflict are often unlikely to have the capacity and resources available to address trafficking in persons (or indeed a range of other issues). In this context, it should be remembered that the lack of any rule of law that always occurs during and after an armed conflict in a country or region may expose the population to a particularly high risk of forced migration and of falling prey to human traffickers.

2. Lack of Financial, Human and Material Resources

In addition to institutional capacity, proper implementation of the Trafficking in Persons Protocol’s prosecution, protection and prevention provisions requires a very substantial financial and material commitment. For this reason, lack of such resources available for implementation may provide a significant, additional barrier to ratification.

This issue first arose in relation to developing States during negotiations on victim protection provisions.50 For example, upon signing the Protocol in December 2000, Mozambique asked that the “richest nations must support unconditionally the most disadvantaged nations by providing them access to financial and material means” to implement the Convention and its Protocols.51 Further, in a report published in 2005, some States Parties expressed a need for financial support and development of financial capacities.52 The distinct lack of a single, low-cost solution to trafficking in persons has been highlighted by some commentators.53

The establishment of specialised task forces and rigorous investigation and prosecution requires considerable financial, human and material resources for both law enforcement and judicial organs.54 Significant resources are also necessary to implement adequate border protection measures required under the Protocol. This is of particular concern for States with expansive land and sea borders. The protection measures under the Protocol, including the provision of legal assistance, medical and psychological care, housing, education, employment and training are equally expensive. It is thus not surprising that among the current non-parties to the Protocol are many developing nations that do not have the ability or willingness to invest scarce resources into efforts to prevent and suppress trafficking in persons, especially if this crime is not seen as a major priority.

In an effort to alleviate some of the burden, in 2010 UNODC established the Voluntary Trust Fund for Victims of Human Trafficking which aims to provide financial assistance for victim protection to both governments and NGOs.55 In October 2011, the Fund made its first payment to twelve non- government projects for use in victim rehabilitation.56 While the amounts awarded were not large, this Fund does relieve some financial burden for the governments in these countries.

In addition, the Convention against Transnational Organised Crime provides that States Parties shall make efforts to enhance international cooperation – including provision of financial and material assistance to developing states to fight transnational organised crime – and suggests the creation of multilateral and bilateral arrangements for assistance.57 In December 2000, immediately after signing the Convention, Italy pledged to use a portion of assets confiscated through prosecution of trafficking in persons offences to provide financial assistance to developing countries to assist them in implementing the Protocol.58

The broad language employed in many of the protection and prevention provisions allows the Protocol to account for resource inequality between States Parties in the implementation of the Protocol. For these reasons, hesitancy and caution towards the Protocol based solely on financial and material consideration may lack merit – and should not deter countries from acceding to this important body of law.

B. Lack of Understanding

Many States lack an understanding of the meaning and dimensions of trafficking in persons and of the purpose, content and requirements of the Trafficking in Persons Protocol.59 This problem may, to some extent, result from a lack of clarity within the Protocol itself and is magnified by a lack of expertise on the dynamics and challenges of trafficking within a given region or territory.60 The normative theory of State compliance with international rules suggests that States are far more likely to take on international obligations where requirements are clear and sufficiently detailed.61 This issue may therefore provide a strong deterrent to signing the Protocol where non-party States do not properly understand the issue to be addressed or the obligations they would be undertaking.

Several commentators have suggested that the Trafficking in Persons Protocol lacks clarity in its framing of, and approach to, trafficking in persons. The Protocol is primarily a crime control and law enforcement instrument and there is widespread agreement that the Protocol’s deliberate framing of trafficking in persons as a type of organised crime requiring primarily a ‘crime control’ response is what fostered consensus in the first place.62 However, despite the emphasis on criminalisation and suppression, input from a wide variety of interest groups led to the inclusion of human rights, immigration, border protection and social services imperatives.63 Whilst the Protocol is clearly not a human rights instrument, human rights elements are evident within the Protocol’s statement of purpose, the repeated referral to trafficked persons as victims and in its protection and prevention measures. Also, the Protocol contains a savings clause stating the continued applicability of international human rights law alongside the Protocol.64 These elements can compete and conflict with the Protocol’s overall ‘law and order’ approach. For example, strong measures on border protection – addressed in art 11 of the Protocol – may infringe freedom of movement and non-refoulement,65 and may push trafficking operations further underground, which could arguably lead to greater exploitation.66 It is debatable whether the savings clauses offer sufficient safeguards and protection of human rights in such situations. For this reason, a number of States may find it confusing and difficult to balance or reconcile the sometimes conflicting and competing goals of the Protocol. This is particularly the case in countries with poor human rights records and countries that express objections towards international human rights law.

Several UN reports have also identified a lack of understanding of the covert criminal activity involved in trafficking in persons and a lack of experience in confronting the challenges posed by them as issues preventing proper implementation of the Protocol.67 The Working Group on Trafficking in Persons has sought to address this issue through discussion and analysis of key concepts within the Protocol and of techniques of proper law enforcement and victim identification.68 The many toolkits, best practice guidelines and implementation frameworks developed by UNODC and UN.GIFT offer further guidance and clarification.

The Protocol itself provides little guidance on the many complex issues associated with trafficking in persons, instead promoting a somewhat ‘one size fits all’ approach to all forms of trafficking in persons. This is seen by some as ‘glossing’ over deeper complexities and nuances, and does not account for specific local dynamics.69 Discussions in the Working Group on Trafficking in Persons, which are open to States Parties and non-party States, tend to take an international approach discussing broad overarching issues, without looking deeply at country or region-specific needs and intricacies. The Protocol’s broad approach was taken to avoid any loopholes and gaps in the definition and to allow the inclusion of ‘yet-to-be-conceived’ forms of trafficking in persons.70 On the other hand, sexual exploitation, labour trafficking, organ trafficking and trafficking in children – all expressly included in the Protocol’s definition of trafficking – are highly distinct phenomena, requiring different and tailored responses.71

C. Lack of Political Will

The UN Secretary General has identified lack of political will as the key reason why many States have yet to become parties to, or properly implement, the Trafficking in Persons Protocol.72 This factor has also been highlighted by a regional study on issues preventing effective combating of trafficking in persons in South Asia.73 In relation to Africa, Thanh-Dam Truong has pointed out that African States are very reluctant to make a financial commitment to addressing the problem of trafficking,74 though Browne Onuoha adds that the lack of available funds is often used as an excuse to cover a lack of political will to address the problem of trafficking in Africa.75 A lack of political will may also explain why developed nations such as Singapore, Japan, the Republic of Korea and the Czech Republic have yet to become parties to the Protocol, despite possessing the necessary financial resources and institutional capacity.

Six principal causes can be identified to explain this lack of political will and determination to address trafficking in persons in some countries. The first is a general reluctance to take on binding international legal obligations regarding trafficking in persons. Secondly, it appears there is little incentive for some states to ratify the Protocol. A third reason is that some non-party states are already taking some action to combat trafficking in persons within their territory and see no need to sign up to additional treaties. Reason four relates to the focus on and controversy over the inclusion of prostitution and sexual exploitation. A fifth reason stems from concerns over illegal acts committed by victims of trafficking. Sixth, economic benefits of migration and cheap labour may encourage some states to turn a blind eye to the exploitation of trafficked persons.

1. Reluctance to Take on Binding International Obligations

By not becoming a party to the Trafficking in Persons Protocol, States may be resisting taking on the binding international obligations. This may be because the Protocol is perceived as potentially interfering with State sovereignty or, as is the case in Singapore, out of a general hesitation towards binding international obligations.76 Indonesia’s formal reservation to the Protocol, for instance, seeks to ensure that nothing in the Protocol will interfere with the country’s territorial integrity and sovereignty. Similarly, Australia’s reservation states that nothing in the Protocol obliges Australia to admit or retain people within its borders who it would not otherwise have to admit or retain.77 This suggests that some countries, States Parties and non-parties alike, may perceive victim protection and repatriation provisions as directly undermining their sovereign right to determine who enters and remains within their borders. This issue is particularly relevant where States fear that any protection of victims of trafficking in persons may encourage further immigration, including illegal immigration.78

A number of countries prefer to engage in non-binding cooperation on the issue of trafficking in persons. This is the case, for instance, with many Pacific Island nations that have not signed the Protocol but are participating in the so-called Bali Process, a regional discussion forum for issues relating primarily to migrant smuggling and irregular migration and, to a considerably lesser extent, to trafficking in persons in the Asia-Pacific region.79 It is the non- binding nature of this forum which encourages countries to acknowledge and discuss trafficking in persons but without invoking any consequences or obligations for participants. The Bali Process has created a model law which reflects many Protocol obligations.80 Whether such steps complement, duplicate, or sideline similar efforts made by the United Nations is open for debate.81 Non-party States to the Protocol such as Fiji and Solomon Islands have made statements in the forum directly acknowledging the issue of trafficking in persons and pledging to take some action. Japan, Thailand and Pakistan are also involved in the Bali Process and have outlined their responses to trafficking in persons.82 Even though some of their domestic responses comply, in whole or in part, with the expectations of the Protocol, these countries have not signed it.

The strong involvement of many non-parties in fora like the Bali Process suggests that some States may not be averse to the idea of combating trafficking in persons and to the content of the Protocol, but dislike the binding nature of (some of ) its provisions. It should also be noted that some regional fora, the Bali Process in particular, concern themselves primarily with the border control and law enforcement response to irregular migration generally, and do not equally explore the many dimensions of trafficking in persons and, in particular, the protection owed to victims of this heinous crime. This approach gives comfort to those countries that, as mentioned earlier, are reluctant to confront all the complexities, including the human rights aspects of trafficking in persons.

2. No Incentive to Ratify

Many states may resist taking on the obligations of international treaties, including the Trafficking in Persons Protocol, as they (rightly or wrongly) perceive they will gain little or no benefit from ratification. States will generally accede to and comply with international obligations where a cost-benefit calculation suggests it is in their interests. According to this “rationalist theory of State behaviour”, the strength of the norms espoused by the international rule have little persuasive influence where States do not see any negative or positive implications from non-compliance or non-ratification.83 As mentioned earlier, the financial and technical assistance provisions contained in the Convention against Transnational Organised Crime, which the Protocol supplements,84 are designed to create some incentive for accession to this body of law and alleviate States’ concerns relating to costs and other resources. Moreover, States Parties as well as non-parties to the Protocol are able to request technical assistance, legal advice, and other support from UNODC and other agencies, without having to first ratify the Protocol.

Research and consultancies carried out or commissioned by UNODC aim to assist non-party States to assess their domestic laws relating to trafficking in persons and encourage and facilitate accession to the Protocol in the medium and long-term. For example, in 2010-11 several UNODC projects have focused on South Asian states, including Bangladesh, Bhutan, Maldives, Nepal, Pakistan and Sri Lanka, providing detailed guidance and recommendations for the domestic implementation of the Protocol.85 UNODC is also engaged in the Bali Process to inform non-party states about, and encourage implementation of, the Protocol’s approach to trafficking in persons.86

3. Countries Already Addressing Trafficking in Persons

Many non-party States may have formed the view that their domestic initiatives against trafficking in persons are sufficient and that accession to the Trafficking in Persons Protocol is not warranted. Several States appear to be taking action against forms of trafficking in persons which they consider most severe or common within their territory, and to be of the view that legislation and programmes already in place are sufficient, without any further need to formally ratify the Protocol. Coupled with the lack of incentive to ratify the Protocol, this provides a very strong explanation for why many States have not ratified.

By way of example, Benjamin Lawrence and Ruby Andrew have examined anti-trafficking trends in sub-Saharan Africa and noted that trafficking in persons has generally been recognised as an issue in the region since 2000. Their research has highlighted three general responses taken by African States. The first is the ‘revalidation’ approach, taken by Angola, Cote d’Ivoire, Eritrea and Sudan – all non-parties to the Protocol – where these States have reinforced the adequacy of existing legislation to deal with trafficking in persons.87 The second form of response is to create blanket legislation on all forms of trafficking in persons as required by the Protocol.88 Non- parties Burundi, Ghana, Sierra Leone, Swaziland and Uganda have taken this approach, highlighting an acceptance of the Protocol despite a lack of ratification.89 In fact, Sierra Leone’s anti-trafficking legislation mirrors the Protocol almost entirely.90 The third approach involves addressing only individual elements of trafficking in persons, such as trafficking in children – a highly prevalent form of trafficking in the region. Ethiopia, Congo and South Sudan have taken this approach, described as a “transitional phase” to acknowledging the broader issue.91 The fact that these countries have taken some action – sometimes guided by the Protocol – suggests that they feel that they are already addressing trafficking without a need to ratify the Protocol. However, a lack of actual enforcement of legislation in these States suggests that capacity and political will to actually implement real changes may be lacking – especially where a country has recently, or is currently, experiencing internal conflict.92

Certain countries in South Asia have also made strong efforts to address trafficking in persons, both within and outside the framework of the Protocol. For example, Nepal, Sri Lanka, Pakistan, Brunei, the Maldives and Bangladesh are all Parties to the South Asian Association for Regional Cooperation (SA ARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution but have not signed the Trafficking in Persons Protocol.93 Unlike the Protocol, the SA ARC Convention does not address the human rights of victims of trafficking in persons,94 nor does it have a mechanism for cooperation between States Parties.95 Bangladesh, Nepal, Pakistan, and Sri Lanka have, however, all undertaken legislative reforms in line with Protocol requirements and have had some successful prosecutions for trafficking crimes. The legislative responses to trafficking in these countries vary and generally do not address all forms of trafficking in persons, or do not follow a uniform definition of trafficking.96 However, their actions suggest that these countries have acknowledged the problem and are willing to take action – however limited – in line with the Protocol, with or without prior ratification.

4. Focus on Prostitution and Sexual Exploitation

Constructivist theory of state behaviour suggests States are less likely to ratify treaties where they do not agree with the norms espoused within.97 According to this analysis, if States do not perceive trafficking in all its forms as a crime worthy of legislative response, they are less likely to ratify the Protocol. Many States, including developed and developing nations, continue to focus their efforts to combat trafficking in persons almost exclusively on trafficking in women for the purpose of prostitution or sexual exploitation, while showing reluctance to similarly acknowledge issues of trafficking for forced labour, domestic service, or organ removal.98 This approach conflicts with the Trafficking in Persons Protocol, which requires States to take action against all forms of trafficking in persons, regardless of the nature and purpose of exploitation.

The strong nexus between trafficking in persons and prostitution reflects the historical focus of anti-trafficking conventions.99 The attitude of some countries also reflects a view that sexual exploitation is particularly morally repugnant, while other forms of trafficking do not ignite the same indignation. Many non-parties to the Protocol are signatories to other anti-prostitution conventions100 which, in turn, may suggest they subscribe to this narrow conception of trafficking for the purpose prostitution or sexual exploitation. For example, Bangladesh, Nepal and Pakistan have specific offences relating to trafficking for the purpose of “prostitution and other immoral purposes”.101 The same language is used in Eritrea, where trafficking for prostitution is classified as an “offence against morals and the family”’.102 These provisions reflect historical perceptions of trafficking in persons but do not conform to modern concepts of this phenomenon.

In some countries, forced or exploitative labour practices are often not viewed as serious crimes and, accordingly, these countries do not apply the Protocol’s strict criminal justice approach to forms of trafficking that do not involve sexual exploitation.103 To that end, the ILO has highlighted the prevalence of bonded and child labour in South Asia and Africa, and suggests that governments are often reluctant to identify and confront forced labour within their borders, some of which may involve victims of trafficking in persons.104 Also, in Singapore, domestic service – which often involves servitude and other forms of trafficking – is seen by some as a matter not worthy of adequate regulation, including criminalisation and enforcement, by the State, leaving many foreign domestic workers unprotected and vulnerable to exploitation.105

5. Focus on Illegal Acts Committed by Victims of Trafficking

The Trafficking in Persons Protocol does not contain any provision preventing criminalisation of victims for status-related offences such as illegal migration and prostitution. During the negotiations of the Protocol text it became clear that many States feared losing the ability to control immigration and outlaw prostitution if they choose to do so.106 The Protocol’s framing of trafficking in persons as a transnational organised crime means victims very often have entered another country illegally, bringing issues of illegal migration and border security to the forefront.107

On the other hand, authors such as Kalen Fredette suggest that the Protocol does entrench the principle of non-criminalisation. This principle ensures that victims of trafficking will not be criminally liable for their unlawful entry into a State or for any acts that they were forced to commit while under the control of other persons. Whilst the Protocol does not explicitly provide for this, it does present trafficked persons as victims and Fredette notes that a similarity (a “legislative link”) “between the Protocol and the UN Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power strongly indicates that the non-criminalisation principle applies.”108

Jyoti Sanghera refers to the connection between trafficking and illegal migration as a “spiral of illegality” which enshrouds trafficking victims.109 Irregular migration is an issue which is highly securitised and an important discussion point in Protocol negotiations was the fear that strong protection measures would encourage illegal migration.110 For this reason, non-party States may be reluctant to identify trafficked persons as victims deserving protection by the host State. Masud Ali, for instance, noted that men in South Asia are rarely investigated as victims of trafficking in persons; instead they are seen within the context of irregular migration.111 This problem is also evident in studies of the African region, where trafficked persons, often viewed within an illegal migration framework, may be criminalised and deported upon identification.112 Additionally, it is well documented that many countries are reluctant to afford rights to migrant workers, even where they have been trafficked, again highlighting a fear of illegal migration and a reluctance to relinquish state control over crime and border control.113

Prostitution remains a criminal offence in many countries and, accordingly, persons engaging in sex work are viewed as offenders, even if they are have been trafficked. As mentioned previously, many countries object to the seemingly liberal view adopted by the Protocol which leaves questions about the criminality and criminalisation of prostitution to individual States Parties. It is noteworthy that among the non-party States to the Protocol are many countries that criminalise prostitution – and often harshly punish persons found to engage in sex work. For example, prostitution is illegal in Afghanistan, Iran, Yemen, Pakistan, Sudan, Sri Lanka, Brunei, most Pacific Island states and almost all African non-parties.114 It is difficult to reconcile this approach with an international treaty that advocates protection of victims of trafficking in persons.

6. Economic Benefits of Migration and Cheap Labour

The economic benefits associated with cheap labour may provide an incentive for some States to turn a blind eye to – or in some cases directly or indirectly encourage – the exploitation of trafficked persons involved in forced labour. Such States, even if they pay lip-service to their efforts to combat trafficking in persons, are unlikely to endorse and enforce the requirements of the Trafficking in Persons Protocol.

Janie Chuang, for instance, argues that globalisation has “produced an environment conducive to trafficking” which tolerates some illegal labour flows.115 Many countries, particularly in South and Southeast Asia, have for a long time promoted overseas employment to their own nationals, hoping for remittances to be returned to their home countries. This has, in some instances, placed workers in exploitative conditions and led to other forms of trafficking in or en route to the receiving countries.116 Many private actors also frequently and enthusiastically seek to capitalise on opportunities for cheap, unprotected labour, which often involves instances of exploitation and trafficking.117

For example, Japan, the Republic of Korea, and Singapore have been singled out for discriminating against unskilled foreign workers and for providing too little assistance and protection to victims of trafficking in persons who are drawn or brought to these countries to meet a significant demand for unskilled labour. June Lee has argued that, combined with prejudices towards migrant workers and difficulties in distinguishing between trafficking victims and illegal migrants, economic incentives to allow exploitative labour to compensate for severe local labour shortages create a reluctance to address trafficking in persons comprehensively and ratify or fully implement the Protocol.118

Similarly, the 2011 US State Department’s Trafficking in Persons Report accuses the Czech Republic of creating an enabling environment for forced labour of migrants – including trafficking victims – through its failure to regulate or control exploitative recruitment agencies. Driven by a desire to address a considerable labour problem in the construction, forestry, agricultural and manufacturing industries, it appears that the advantages of cheap – and sometimes forced – labour prevail over any serious attempt to take action against labour trafficking.119

V. Beyond Ratification: Action by Party and Non-Party States

Ratification of the Trafficking in Persons Protocol is merely one step in addressing the many and often complex issues associated with trafficking in persons. Indeed, many States Parties have done very little to implement and operationalise the Protocol. Some countries appear to have done little more than ratify the Protocol and enact blanket legislation as a substitute for any real action against trafficking in persons and as a means of staving off international criticism or scrutiny.120

For example, Algeria and Saudi Arabia have been singled out for taking little or no measures to address the significant trafficking problems of their countries.121 While Saudi Arabia does criminalise all forms of trafficking,

Algeria does not, and both countries have been criticised for making no effort to investigate and prosecute offenders or identify and protect victims.122 Problems with implementation have also been reported from sub-Saharan African States Parties. Even where anti-trafficking legislation has been implemented, it is often not enforced and/or only focuses on rudimentary aspects of a much wider trafficking problem.123

Conversely, significant steps have been taken by some non-party States toward addressing trafficking within their territories. India, for instance, appears to have deliberately waited with its ratification (which occurred in May 2011) until it reached a point where it was capable of properly implementing the Protocol through legislation and appropriate law enforcement programs.124 Fiji, Nepal and Ghana are three further examples of States which have not signed the Protocol but which have taken significant action to address trafficking in persons in line with Protocol requirements. These countries have criminalised all forms of trafficking in persons and created national implementation and action plans. According to the most recent US Trafficking in Persons Report, Fiji has taken enforcement and victim protection measures to implement minimum standards and is making significant efforts despite not having signed the Protocol.125 The UN Global Report on Trafficking in Persons notes that Nepal has amended domestic legislation to comply with the Protocol.126 Ghana enacted legislation addressing all forms of trafficking in persons in 2005 and does attempt to regulate industries conducive to trafficking. This legislation is also tailored to specifically address the problem of parents who sell their children to traffickers, which is a common problem in Ghana.127 While effective enforcement has yet to materialise, the Government of Ghana appears to acknowledge existing deficiencies and take steps to comply with the Protocol (without signing it).128

This short – and perhaps simplistic – snapshot confirms that ratification of the Protocol by no means equates with resolute action by States Parties. A considerable number of States Parties appear to subscribe to the lofty goals of the Protocol on the surface, but this is merely symbolic or rhetoric so long as these countries take little, if any meaningful action to prevent and suppress trafficking in persons within their territories.

This doomed view should, however, not distract from the fact that the Protocol remains the single and most important international framework to combat trafficking in persons and that the lack of effective implementation is not a flaw of the Protocol, but the fault of individual States. Accordingly, it is indeed desirable to achieve wider ratification of the Protocol and perhaps turn to more aggressive measures to ensure States Parties live up to international expectations and obligations.

VI. The Way Ahead

This article has highlighted the importance of ratification of the Trafficking in Persons Protocol and identified the barriers to ratification for the remaining non-party States. A lack of political will crystallises as the most immediate and significant obstacle to preventing and suppressing trafficking in persons more effectively around the world.

The perceived lack of incentives, the view that enough is already done through national laws or non-binding regional initiatives and a general reluctance to accept binding obligations on issues that traditionally have been matters of national concern only are among the principal reasons why many countries have chosen not to sign the Protocol. The Protocol itself, the Conference of States Parties, and UNODC, the ‘guardian’ of the Protocol, are ill-equipped to rectify this situation as they have no power to enforce Protocol obligations domestically or persuade non-party States to accede to this body of law. The US State Department’s annual Trafficking in Persons Report, while feared by many countries, does little to advocate the international frameworks established by and in conjunction with the Protocol.

The costs, expertise, and resources necessary to understand and comprehensively implement the Protocol domestically are further deterrents for many non-State parties, especially developing nations and small island States. While the Protocol establishes a basic framework to provide some technical and financial assistance to eligible States Parties, the existing measures, together with the support available through UNODC and other international organisations, fail to address deeper problems of under- development, corruption, and internal conflict which greatly diminish a country’s ability to ratify and implement the Protocol, or prioritise trafficking in persons as an issue. These underlying issues must be acknowledged and dealt with before higher-level technical assistance will be effective in overcoming capacity and resource limitations that concern non-parties and States Parties alike.

In this context, it is also relevant to note that the fact that non-party States are able to access many forms of technical and financial assistance may be counterproductive to achieve a greater number of parties. It could thus be suggested that the imperative of ratification be given greater weight in recommendations to countries seeking assistance from the international community and from individual donor countries as a means of creating some incentive for countries which have yet to sign or ratify the Protocol. This, however, may deter some countries altogether from taking steps against trafficking in persons, especially if these efforts are not a national priority.

The broad scope of the Protocol’s application, its wide definition of trafficking in persons, and the confusing and sometimes competing goals of the Protocol leave some States uncertain about the Protocol’s principal obligations. These factors also cause others to oppose a treaty that criminalises forms of trafficking not seen as relevant domestically and that protects persons not seen as worthy of protection by some governments.

The very nature of the Trafficking in Persons Protocol as an international, UN treaty may be seen as ignoring local and regional complexities, nuances, and dynamics of trafficking in persons. This view challenges the basic notion and viability of a universal framework to combat this phenomenon and is one that requires further research and analysis. As earlier points raised in this article have demonstrated, there are some questions about how suitable and adaptable the Protocol is to adequately respond to unique manifestations of trafficking in individual countries and locations.

It is beyond the scope of this article to propose amendments to the Protocol or to develop recommendations that address the diverse concerns and reservations by individual countries. It is hoped, that this article provides some insight into actual and perceived objections to the Trafficking in Persons Protocol and, through such insight, provides a starting point for further discussion and analysis which, in the medium and long-term, will lead to greater acceptance and more effective implementation of the Protocol in countries around the world.

* Phd (Adelaide). Professor of Criminal Law, The University of Queensland TC Beirne School of Law, Brisbane Australia.
** LLB, BA candidate, The University of Queensland. The authors thank the other members of the UQ Human Trafficking Working Group for their support and friendship. For further information, visit <www.law.uq.edu.au/humantrafficking>. The authors also wish to thank the anonymous reviewers for the feedback and corrections provided.

1 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (opened for signature 12 December 2000, entered into force 25 December 2003) [“Trafficking in Persons Protocol”].
2 The definition of trafficking in persons, contained in art 3 of the Trafficking in Persons Protocol, requires trafficking to be for the purpose of exploitation, including “at 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”.
3 Convention Against Transnational Organised Crime (opened for signature 12 December 2000, entered into force 29 September 2003). To become a State Party to the Trafficking in Persons Protocol, states must first sign the Convention against Transnational Organised Crime.
4 See Anne Gallagher The International Law of Human Trafficking (Cambridge University Press, New York, 2010) at 71. See also Phyllis Coontz and Catherine Griebel “International approaches to human trafficking: The call for a gender-sensitive perspective in international law” (2004) 4 Women’s Hlth J 47 at 49.
5 Trafficking in Persons Protocol, arts 2 and 5.
6 See Patrick Taran “Human rights of migrants: Challenges of the new decade” (2000) 38 Intl Migr 7 at 8; Anne Gallagher “Human rights and the new UN Protocols on trafficking and migrant smuggling: A preliminary analysis” (2001) 23 HRQ 975 at 991-992.
7 This number includes the European Union. The number of States Parties is 146.
8 Namely, Angola, Afghanistan, Andorra, Bangladesh, Bhutan, Brunei Darussalam, Comoros, Cote D’Ivoire, Cuba, The Democratic People’s Republic of Korea, Dominica, Eritrea, Ethiopia, Fiji, Ghana, Iran, Maldives, Marshall Islands, Nepal, Pakistan, Palau, Papua New Guinea, Samoa, Singapore, Solomon Islands, Somalia, St Lucia, Sudan, South Sudan, Tonga, Tuvalu, Vanuatu, Vietnam, Yemen, Zimbabwe.
9 Namely, Barbados, Burundi, the Republic of Congo, Czech Republic, Japan, Nauru, the Republic of Korea, Sierra Leone, Sri Lanka, Swaziland, Thailand, Uganda.
10 UN Office on Drugs and Crime International Framework for Action to Implement the Trafficking in Persons Protocol (United Nations, Vienna, 2009); UN Office on Drugs and Crime and UN Global Initiative to Fight Human Trafficking Model Law against Trafficking in Persons (United Nations, Vienna, 2009); Conference of the Parties to the United Nations Convention Against Transnational Organised Crime Report of the Secretariat on Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime: consolidated information received from States for the first reporting cycle UN Doc CTOC/COP/2005/3/Rev.2 (2008); UN Secretary-General Improving the coordination of efforts against trafficking in persons – Background Paper of the Secretary-General UN Doc A/63/90 (2009); United States Department of State 2011 Trafficking in Persons Report (US Department of State, Washington DC, 2011); UN Office on Drugs and Crime Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka: Legal and policy review (UNODC, Vienna, 2011) [“Responses – Bangladesh, India, Nepal and Sri Lanka”]; LeRoy Potts “Global trafficking in human beings: Assessing the success of the United Nations protocol to prevent trafficking in persons” (2003) 35 Geo Wash Intl L Rev 227; Kalen Fredette “Revisiting the UN Protocol on Human Trafficking: Striking balances for more effective legislation” (2009) 17 Cardozo J Intl & Comp L 101.
11 Trafficking in Persons Protocol, art 3(c).
12 It is noted that victims often consent to an aspect of the trafficking process such as to migration to work in another country, to carry false documents or to enter a country illegally. See UN Office on Drugs and Crime Travaux Préparatoires of the Negotiations for the elaboration of the United Nations Conventions against Transnational Organised Crime and the Protocols thereto (United Nations, Vienna, 2006) [“Travaux Préparatoires”] 344. See also Ann Jordan “Annotated Guide to the Complete UN Trafficking Protocol” (2002) HRL Group 11.
13 The requirement that one of these means by used to engage the victim ensures that practices which some consider inherently exploitative – in particular prostitution – are not considered trafficking when engaged in by fully consenting adults. This element involved reconciling a debate over whether an adult woman could ever consent to prostitution. For an outline of this debate, see Gallagher, above n 6, at 984-985.
14 Trafficking in Persons Protocol, art 2.
15 Trafficking in Persons Protocol, art 5.
16 UNODC and UN.GIFT, above n 10.
17 Travaux Préparatoires, above n 12, at 337.
18 Trafficking in Persons Protocol, art 2.
19 Ibid, at art 6.
20 Ibid, at arts 7 and 8.
21 Ibid, at art 9.
22 Ibid, at art 10.
23 Ibid, at art 11.
24 Ibid, at art 10(2).
25 Ibid, at art 2; see also Fredette, above n 10, at 113; Kauko Aromaa “Trafficking in human beings: Uniform definitions for better measuring and for effective counter-measures” in Ernesto Savona and Sonia Stefanizzi (eds) Measuring Human Trafficking: Complexities and Pitfalls (Springer, New York, 2007) at 16.
26 Potts, above n 10, at 243; Fredette, above n 10, at 124.
27 Beth Simmons and Paulette Lloyd “The diffusion of global law: Transnational crime and the case of human trafficking” (Draft article for discussion at the International Studies Association Annual Meeting, Montreal, March 2011) at 17.
28 See also UNODC International Framework for Action to Implement the Trafficking in Persons Protocol (United Nations, Vienna, 2009) at 5.
29 Simmons and Lloyd, above n 27, at 17, 29 and 33.
30 Harold H Koh “1998 Frankel Lecture: Bringing international law home’ (1998) 35 Hous L Rev 623 at 626; Oona A Hathaway “Do human rights treaties make a difference?” (2002) 111 YLJ 1935 at 1961.
31 Hathaway, above n 30, at 2022.
32 Ibid, at 2021.
33 The non-parties in this region are: Afghanistan, Bangladesh, Bhutan, Maldives, Nepal, Pakistan, and Sri Lanka.
34 The non-parties in this region are Fiji, Marshall Islands, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu.
35 Singapore, Vietnam, the Democratic People’s Republic of Korea (DPRK), Japan, the Republic of Korea (ROK), Thailand, Brunei Darussalam.
36 Angola, Comoros, Cote d’Ivoire, Eritrea, Ethiopia, Ghana, Somalia, Sudan, South Sudan, Zimbabwe, Burundi, The Congo, Sierra Leone, Swaziland, and Uganda.
37 The non-parties in this region are Dominica, Cuba, St Lucia and Barbados.
38 The non-parties in this region are Iraq and Yemen.
39 The non-parties in this region are Andorra and the Czech Republic.
40 UN Development Programme Human Development Report 2010 – The real wealth of nations: Pathways to Human Development (Palgrave, New York, 2010) at 143-146.
41 Chayes suggests states are much less likely to become parties to treaties with which they do not intend to comply. This is discussed by Oona A Hathaway “The Cost of Commitment” (2003) 55 Stan L Rev 1821 at 1829.
42 Gallagher, above n 4, at 463. This point is also made by the UNODC International Framework for Action to Implement the Trafficking in Persons Protocol (United Nations, Vienna, 2009) at 12.
43 Gallagher, above n 4, at 464.
44 Conference of the Parties to the United Nations Convention Against Transnational Organised Crime, above n 10, at 13.
45 UN Secretary-General, above n 10, at 24.
46 See Irena Omelaniuk “Trafficking in Human Beings” in United Nations Expert Group Meeting on International Migration and Development: Population Division Department of Economic and Social Affairs UN Doc UN/POP/MIG/2005/15 (2005) for an outline of the work of the UN High Commissioner for Human Rights, UN Children’s Fund, ILO International Organisation for Migration (IOM), UN Education, Scientific and Cultural Organisation (UNESCO), OSCE, Caribbean Community, Organisation of American States and the EU and important NGOs working to combat trafficking in persons.
47 Including Afghanistan, Bangladesh, Comoros, Japan, the Democratic People’s Republic of Korea, Papua New Guinea, Palau, Thailand, Tonga, Vietnam and Zimbabwe. See US Department of State, above n 10.
48 Kathy Richards “The trafficking of migrant workers: What are the links between labour trafficking and corruption?” (2004) 42 Intl Migr 147 at 157-158; Corbin Lyday “The shadow market in human beings: An anti-corruption perspective” (Paper presented at the 10th International Anti-Corruption Conference, Prague, 7-11 October 2001) at 7.
49 These countries are Angola, Cote D’Ivoire, Eritrea, Ethiopia, Somalia, Sierra Leone, Sudan, South Sudan, Zimbabwe and Uganda.
50 Travaux Préparatoires, above n 12, at 367.
51 United Nations “More than 120 Nations Sign New UN Convention on Transnational Organised Crime, As High-level Meeting Concludes in Palermo” (Press Release, 15 December 2000).
52 Conference of the Parties to the United Nations Convention against Transnational Organised Crime, above n 10, at 13.
53 Gallagher, above n 4, at 463.
54 UN Secretary-General, above n 10, at 24.
55 UN General Assembly United Nations Global Plan of Action to Combat Trafficking in Persons GA Res 293, A/RES/64/293 (2010) at [38].
56 “New UN fund awards $300,000 to help rehabilitate victims of human trafficking” UN News Service (New York, 18 October 2011).
57 Convention Against Transnational Organised Crime, art 30.
58 Pino Arlacchi “Closing Remarks” (High-level Conference for the United Nations Convention Against Transnational Organised Crime and the Protocols Thereto, Palermo, 15 December 2000).
59 Jyoti Sanghera “Unpacking the trafficking discourse” in Kempala Kempadoo with Jyoti Sanghera and Bandana Pattanaik (eds), Trafficking and prostitution reconsidered: New perspectives on migration, sex work and human rights (Paradigm Publishers, Boulder, 2005) at 4-6; Gallagher, above n 4, at 464.
60 Conference of the Parties to the United Nations Convention Against Transnational Organised Crime, above n 10, at 13.
61 Gallagher, above n 4, at 464; Hathaway, above n 30, at 1958.
62 Simmons and Lloyd, above n 27; Janie Chuang “Beyond a snapshot: Preventing human trafficking in the global economy” (2006) 13 Ind J Global Legal Studies 137 at 147.
63 See Vanessa Munro “Stopping Traffic? A comparative study of responses to trafficking in women for prostitution” (2006) 49 Brit J Criminol 318. The UN High Commissioner for Human Rights also points out the existence of a variety of approaches to human trafficking, including human rights, crime, migration, sexual exploitation and labour, see Office of the High Commissioner for Human Rights Recommended principles and guidelines on human rights and human trafficking: Commentary UN Doc HR/PUB/10/2 (2010) at 17.
64 The infusion of human rights within the Protocol is discussed by Joan Fitzpatrick “Trafficking as a human rights violation: The complex intersection of legal frameworks for conceptualizing and combating trafficking” (2003) 24 MJIL 1143 at 1151-1153.
65 Office of the High Commissioner for Human Rights, above n 63, at 86 and 92.
66 Sanghera, above n 59, at 11.
67 Conference of the Parties to the United Nations Convention against Transnational Organised Crime, above n 10, at 13; UN Secretary-General, above n 10, at 24.
68 Conference of the Parties to the United Nations Convention Against Transnational Organised Crime, Working Group on Trafficking in Persons Analysis of key concepts of the Trafficking in Persons Protocol – Background paper prepared by the Secretariat UN Doc CTOC/ COP/WG.4/2010/2 (2009); Conference of the Parties to the United Nations Convention Against Transnational Organised Crime, Working Group on Trafficking in Persons Victims of trafficking in persons, with particular emphasis on identification, UN Doc CTOC/COP/ WG.4/2011/4 (2011).
69 That the Protocol’s definition may be too broad, obscuring important differences between trafficking and the end point of exploitation, and between various forms of exploitation is discussed by Gallagher, above n 4, at 49. See also Coontz and Griebel, above n 4, at 48.
70 Fredette, above n 10, at 114.
71 Gallagher, above n 4, at 49. See also Potts, above n 10, at 244-245, who argues for a stand- alone instrument for child trafficking to address their special and distinct needs.
72 UN Secretary-General, above n 10, at 24.
73 Nomita Aggarwal Regional Study for the Harmonization of Anti-Trafficking Legal Framework in India, Bangladesh and Nepal with International Standards: Developing rights based approach for anti-trafficking actions in South Asia (Kathmandu School of Law, Kathmandu, 2007) at 4.
74 Thanh-Dam Truong Governance and Poverty in sub-Saharan Africa: Re-thinking best practices in migration management (Blackwell Publishing Ltd, UNESCO Open Forum, 2008) at 707.
75 Browne Onuoha “The state human trafficking and human rights issues in Africa” (2011) 14 Contemp Justice Rev 149 at 155.
76 Robyn Iredale and Nicola Piper “Identification of the Obstacles to the Signing and Ratification of the UN Convention on the Protection of the Rights of All Migrant Workers: The Asia-Pacific Perspective” (Report for UNESCO International Migration and Policies Section, Paris, 2003) at 44-46.
77 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (adopted 15 November 2000, entered into force 25 December 2003) at ‘Penal Matters’, 12a, Declarations and Reservations.
78 Khalid Koser “Irregular migration, state security and human security” (Paper prepared for the Policy Analysis and Research Programme of the Global Commission on International Migration, Geneva, 2005) at 10.
79 The non-parties participating in the Bali Process are Fiji, Palau, Papua New Guinea, Nauru, Samoa, Solomon Islands, Tonga, Vanuatu, Afghanistan, Bangladesh, Bhutan, Brunei Darussalam, North Korea, Iran, Japan, Maldives, Nepal, Pakistan, Republic of Korea, Singapore, Sri Lanka, Thailand, and Vietnam. See Bali Process Homepage <http://www. baliprocess.net/index.asp?pageID=2145831400> .
80 “Model Law to Criminalise People Trafficking” Bali Process <http://www.baliprocess.net/ index.asp?PageID=2145831427> .
81 See in particular, UNODC and UN.GIFT, above n 10.
82 See for example, “Workshop on Human Trafficking: Victim Support” (7-9 November 2006) <http://www.baliprocess.net/index.asp?pageID=2145842644> at Bali, Indonesia at which Japan, Thailand and Pakistan gave presentations.
83 Hathaway, above n 30, at 1944; Uta Oberdorster “Why ratify? Lessons from treaty ratification campaigns” (2008) 61 Vand L Rev 647 at 686-687.
84 To become a State Party to the Trafficking in Persons Protocol, states must first sign the Convention against Transnational Organised Crime.
85 See, for example, UNODC Country Office Pakistan Trafficking in Persons in Pakistan: A Review of National Laws and Treaty Compliance (UNODC, Vienna, 2011) [“Trafficking in Persons in Pakistan”]; UNODC Country Office Pakistan Pakistan’s Law Enforcement Response to the Smuggling of Migrants and Trafficking in Persons (UNODC, Vienna, 2011); UNODC “Responses – Bangladesh, India, Nepal and Sri Lanka”, above n 10; “South Asia: six countries meet to increase international cooperation against human trafficking and smuggling of migrants” (2010) UNODC South Asia <http://www.unodc.org/southasia/en/ frontpage/2010/March/international-cooperation.html> .
86 UNODC is listed as a ‘Bali Process Organisation’ on the Bali Process website home page, above n 80. See also UNODC “UNODC support in the field of migrant smuggling and human trafficking legislation” (Presentation at Bali Process Ad Hoc Group Senior Officials’ Meeting, Bali, March 2011).
87 Benjamin Lawrance and Ruby Andrew “A ‘Neo-Abolitionist Trend’ in Sub-Saharan Africa? Regional Anti-Trafficking Patterns and a Preliminary Legislative Taxonomy” (2011) 9 SJSJ 599 at 637 and 651.
88 Ibid, at 638.
89 Ibid, at 637.
90 Ibid, at 634.
91 Ibid, at 643.
92 Ibid, at 652; Thanh-Dam Truong, Governance and Poverty in sub-Saharan Africa: Re-thinking best practices in migration management (Blackwell Publishing Ltd, UNESCO Open Forum, 2008) at 707.
93 Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (adopted in 2002 by the South Asian Association for Regional Cooperation).
94 Sigma Huda “Sex trafficking in South Asia” (2006) Intl J Gynecol Obstet 374 at 380.
95 Nandita Baruah “Trafficking in women and children in South Asia – A regional perspective” (2005) <www.empowerpoor.org/downloads/Trafficking%20in%20South%20Asia.pdf> at 8.
96 UNODC “Responses – Bangladesh, India, Nepal and Sri Lanka”, above n 85; UNODC “Trafficking in Persons in Pakistan”, above n 85.
97 Oberdorster, above n 83, at 694.
98 Ann Jordan “Human rights or wrongs? The struggle for a rights-based response to trafficking in human beings” (2002) 10 G&D 28 at 29.
99 See for example, the International Convention for the Suppression of the Traffic in Women and Children (adopted on 30 September 1921, entered into force 15 June 1922); Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981).
100 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (adopted 21 March 1950, entered into force 25 July 1951). The parties to this treaty who are not parties to the Trafficking in Persons Protocol are Afghanistan, Bangladesh, Nepal, Singapore, Sri Lanka, Congo, Cote D’Ivoire, Cuba, Ethiopia, Ghana, Iran, Yemen, Zimbabwe. See also the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution adopted in 2002 by the South Asian Association for Regional Cooperation to which Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka are parties.
101 Aggarwal, above n 73, at 23-24.
102 UNODC and UN.GIFT Global Report on Trafficking in Persons (United Nations, Vienna, 2009) at 112 [“Global Report”].
103 Chuang, above n 62, at 154.
104 ILO A Global Alliance Against Forced Labour (Report of the Director-General to the International Labour Conference, Geneva, 2005) at 2. The same issue has been identified by Linda Smith and Mohamed Mattar “Creating International Consensus on Combating Trafficking in Persons: U.S. Policy, the Role of the UN, and Global Responses and Challenges” (2004) 28 Fletcher Forum World Aff 155 at 172.
105 Iredale and Piper, above n 76, at 43-45.
106 Gallagher, above n 6, at 991.
107 For a discussion of the links between illegal migration, organised crime and trafficking in persons, see Raimo Vayrynen “Illegal Immigration, Human Trafficking and Organised Crime” (Discussion Paper No. 2003/72 for the United Nations University: World Institute for Development Economic research, Tokyo, 2003).
108 See also Fredette, above n 10, at 129.
109 Sanghera, above n 59, at 9.
110 Travaux Préparatoires, above n 12, 381.
111 Masud Ali “Treading along a treacherous trail: Researching on trafficking in persons in South Asia” in Frank Laczko and Elzbieta Gozdziak (eds) Data and Research on Human Trafficking: A Global Survey (IOM, Geneva, 2005) at 151.
112 See Thanh-Dam Truong, “Governance and Poverty in sub-Saharan Africa: Re-thinking best practices in migration management” (2006) 58 International Social Science Journal 697 at 707.
113 Chuang, above n 62, at 150.
114 Smith and Mattar, above n 104, at 170; United States Department of State, United States Country Reports on Human Rights Practices (US Department of State, Washington DC, 2008); US Department of State, above n 10, at 62, 100 and 195; UNODC “Responses – Bangladesh, India, Nepal and Sri Lanka”, above n 85, at 73.
115 Chuang, above n 62, at 138 and 143-144.
116 ILO, above n 104, at 63.
117 Vayrynen, above n 107, at 4.
118 June Lee “Human Trafficking in East Asia: Current Trends, Data Collection and Knowledge Gaps” in Laczko and Gozdziak, above n 111, at 166 –167. See also Iredale and Piper, above n 76, at 25, 33 and 50; Richards, above n 48, at 152.
119 US Department of State, above n 10, at 141–142.
120 Lincoln Fry “What was the significance of countries ratifying the UN Protocol against human trafficking?” (2009) 4 Intl J Crim Just Sciences 118 at 127. See also Lawrance and Andrew, above n 87, at 658.
121 The 2011 Trafficking in Persons Report outlines a very large forced labour problem in Saudi Arabia, and identifies Algeria as a transit and destination country for men, women and children trafficked into prostitution and forced labour, see US Department of State, above n 10, at 65 and 311. UNODC and UN.GIFT “Global Report”, above n 102, at 53 also identified the trafficking of children as camel jockeys as a major problem in the Middle East generally. Adepoju identified Saudi Arabia as a destination country for women trafficked for prostitution and pornography, see Aderanti Adepoju “Review of Research and Data on Human Trafficking in sub-Saharan Africa” (2005) 43 Intl Migr 75 at 78.
122 US Department of State, above n 10, at 65-66 and 311-312; UNODC and UN.GIFT “Global Report”, above n 102, at 79.
123 Thanh-Dam Truong, above n 112, at 707; Browne Onuoha “The state human trafficking and human rights issues in Africa” (2011) 14 Cont Just Rev 149 at 159-160; Lawrance and Andrew, above n 87, at 658.
124 Press Information Bureau “Ajay Maken launches SOP for Police for investigating human trafficking” (press release, 29 June 2009) in which the Indian Government claims it is in the process of ratifying the Protocol. India ratified in May 2011.
125 US Department of State, above n 10, at 160-161.
126 UNODC and UN.GIFT “Global Report”, above n 102, at 201.
127 Lawrance and Andrew, above n 87, at 639.
128 Benjamin Lawrance “From Child Labor ‘Problem’ to Human Trafficking ‘Crisis’: Child Advocacy and Anti-Trafficking Legislation in Ghana” (2010) 78 Intl Labour Work Class Hist 63 at 78.