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Part I Defining Contemporary
Slavery
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1 Conceptualizing the Exploitation of Human Trafficking
Jean Allain
As States have moved to incorporate the United Nations Palermo Protocol and the Council of Europe Convention related to human trafficking into their domestic legislation, they have included an ever-growing list of activities deemed exploitative. Yet, taking the open-ended nature of exploitation to its logical conclusion would recognize that any activity could thus be deemed exploitation. If everything can be deemed exploitative, then the very concept is rid of its content. What this study demonstrates is that more than 30 States have reclaimed a fixed meaning of human trafficking by introducing a residual clause which effectively neutralizes the need to innumerate various types of exploitation. In so doing, they lend weight to an argument developed here that suggests that the time is ripe to move away from an understanding of exploitation based on various types (be it begging or forced labour) and to start thinking of exploitation as a concept. This would have the practical effect of helping to promote the central task of Palermo: mutual assistance in criminal matters. However, perhaps most importantly, it would capture the essence of âtrafficking', front-loading the crime as being essentially about the means of compelling a person to move, thus allowing for a clear distinction to be made between trafficking and the specifically enumerated types of exploitation set out in the definition of human trafficking as a stand-alone offence, most notably forced labour and slavery.
In November 2000, the United Nations General Assembly adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereafter: the Palermo Protocol) â so as to supplement the United Nations Convention against Transnational Organized Crime which has the object of promoting âcooperation to prevent and combat crime more effectively'.1 As of August 2018, there are 173 States party to the Palermo Protocol, the vast majority having developed domestic legislation implementing the various obligations flowing from that instrument.2
The definition of trafficking found in the 2000 Palermo Protocol, and reproduced in substance in the 2005 Council of Europe anti-trafficking convention, is here broken down into its component parts (re. methods of movement, means of compulsion, the exploitative purposes):
Trafficking in personsâ 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.3
This definition allows the possibility of expanding the enumerated types of practices deemed exploitative through the wording found at the start of the last full sentence of the definition: âExploitation shall include, at a minimum [âŚ]'. While the use of the term âat a minimumâ allows scope for âunnamed or new forms of exploitationâ to be included in domestic legislation, the reality has been that domestic legislators have simply utilized this prerogative to âgo beyond the offences listed in this definitionâ in an ever-expanding manner.4
As to an expansive list of types of exploitation, it may be said that very few States have incorporated verbatim the actual definition of trafficking in persons found in the Palermo Protocol. Instead legislators have set out what is, in essence, variations on the theme, while, in other instances, they have provided a unique reading of trafficking, introducing new types of exploitation which then constitute their criminal offence of human trafficking.
The case of Moldova is indicative of a State with a unique reading of trafficking, wherein the Palermo Protocol definition is used as the foundation to build upon in crafting a new understanding of what constitutes trafficking in a specific domestic jurisdiction. In the main, States have left the âmethodsâ and âmeansâ elements in place and focused on expanding the âpurposeâ element of the definition â that is to say, expanding the types of exploitation to be covered under their specific understanding of the concept of trafficking. Moldova has, to date, taken the widest understanding of exploitation in anti-trafficking legislation among States. Its provision establishes that exploitation includes:
- compelling to perform work or services, by use of force, threats or other forms of coercion, in violation of the legal provisions connected to labour conditions, remuneration, health and security;
- slavery, use of certain practices similar to slavery, or resorting to other ways of deprivation of liberty;
- compelling to engage in prostitution, to participate in pornographic performances, with a view to the production, distribution and any introduction into circulation of such performances, the acquisition, sale or possession of pornographic material, or practicing other forms of sexual exploitation;
- compelling harvesting of organs or tissues for transplantation or collection of other component parts of the human body;
- using a woman as a surrogate mother or for reproductive purposes;
- abuse of a child's rights with a view to illegal adoption;
- use in armed conflicts or in illegal military formations;
- use in criminal activities;
- compelling to engage in begging;
- sale to another person;
- compelling to engage in other activities that violate fundamental human rights and freedoms.5
Having provided the Moldovan examples of an expansive provision which establishes a number of instances which constitute exploitation and thus modifies the Palermo Protocol understanding of trafficking, consideration now turns to various other readings which States have given in their domestic legislation to the notion of human trafficking.
In the first instance, it should be emphasized that a small number of States such as the Bahamas,6 Liberia,7 and the Philippines,8 have legislation which mirrors the definition as established in the Palermo Protocol. And yet, even in these cases, what constitutes trafficking is not guaranteed to be the same. For instance, the legislation of the Bahamas follows a unique route in defining âsexual exploitationâ and incorporating provisions related to such exploitation taking place âas a result of being subjected to [âŚ] the effects of narcotic drugs'.9
Beyond those States which have incorporated the Palermo Protocol verbatim, other States have incorporated a great number of varied acts which they deem to be types of exploitation. In a number of instances, more than one State has included the following as types of exploitation: begging; illegal adoption; servile or forced marriage; pornography;10 sex tourism;11 surrogacy.12 Further, a number of States have established that the removal of one or more of the following constitute a type of exploitation: blood, cells, organs, tissues, and body parts.13
Beyond these types of exploitation incorporated into more than one domestic legal order, individual States have also set out unique types of acts deemed exploitative in their domestic legislation, including Azerbaijan: âbio-medical research on a person';14 Bolivia: âfarm labour';15 Bulgaria: âdebauchery';16 Mauritania: âunpaid work';17 Oman: âsexual assault';18 and Pakistan: âpurpose of exploitative entertainment', wherein exploitative entertainment is defined as âall activities in connection with human sports or sexual practices or sex and related abusive practices'.19 Macedonia has determined that exploitation includes âforced fertilization'.20 South Africa, for its part, deems that it includes âthe impregnation of a female person against her will for the purpose of selling her child when the child is born'. Finally, Uruguay speaks of âany activity that undermines human dignity'.21
A number of States have also sought to include in their legislation on trafficking in persons, types of exploitation manifest during times of armed conflict. Thus, Kenya determines that exploitation also includes âforcible or fraudulent use of any human being to take part in armed conflict';22 while Kyrgystani, Tajikistani and Ukrainian legislation all speak of using a person in armed conflict.23 Sierra Leone speaks of âexploitation during armed conflicts';24 while Norway is more concerned with its citizens fighting for foreign powers: âwar service in a foreign country'.25
There is one more type of exploitation that a number of States have incorporated into their domestic legislation, which will be considered shortly, as it regards more a means of conceptualizing exploitation than a specific type of exploitation. That said, it should be emphasized that this diversity of types of exploitation incorporated into the domestic legal order of States party to the Palermo Protocol creates a fundamental challenge to the effectiveness of the transnational nature of the regime meant to address human trafficking.
Conceptualizing Exploitation
There is no established definition of âexploitationâ in international law. It manifests itself in two ways. In reference to a thing rather than a person, it is deemed positive. Thus, the 1982 United Nations Convention on the Law of the Sea allows for the âeconomic exploitationâ of living and non-living natural resources of both the sea and seabed. However, where it applies to a person, it is considered to be negative. In more visceral terms, the French Representative negotiating the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, noted that âto exploit a person always had an evil connotation'.26 In the context of consideration by the negotiators of the e...
