In recent years there has been a significant increase worldwide in discussion about the problem of trafficking. The abuses of the basic human rights of trafficked persons, who are mainly women and girls, arouse great concern. NGOs, governments, the United Nations and others have attempted to respond to the problem. However, there are many different opinions about what trafficking is, how widespread trafficking is, how to understand the problem and what needs to be done to respond to it and to address the growing restrictions against legal and safe migration that people around the world are facing.
What is trafficking?
"Trafficking" has been defined in various ways over the years and by different groups. Since 2000, a widely used definition is that of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children (also known as the Palermo Protocol). According to this document, trafficking in persons is 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.
Trafficking vs. Smuggling
It is useful to distinguish between trafficking in persons and people smuggling. A person who is trafficked is kept under the control of the traffickers, whereas a migrant smuggler simply facilitates clandestine entry into a country.
Some key elements of a definition of trafficking
Consent: Trafficking is usually defined as requiring that those trafficked be unwilling, i.e. that they have been deceived or abducted by force. This is contrasted with smuggled persons, who are assumed to want entry into the other country. This distinction, however, is not a simple one, since many if not most migrants experience varying degrees of coercion and deception. Also individuals may knowingly accept a situation of exploitation, because it is the best option available to them, or may start by agreeing with a proposal and later become unwilling when they learn of the real situation. The issue of consent on its own therefore does not tell us whether a person has been trafficked or not.
Forced Labour: Most definitions of trafficking include reference to some kind of forced labour. The traffickers’ purpose is to exploit the labour or services of those who are trafficked. According to the Palermo Protocol, exploitation includes “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.” Some groups consider any form of prostitution to be by definition exploitative, with the result that they consider large numbers of women to be trafficked. Others reject such an approach on the basis that it denies the limited agency available to migrant (and other) sex workers and assumes that other forms of labour exploitation are less abhorrent to women. There is often a lot of focus on sexual exploitation in discussions of trafficking, but trafficking might also include such things as sweatshop labour, domestic labour or selling drugs, work in restaurants, farms, or factories, etc.
Migration: While some definitions of trafficking include situations where the trafficked persons are still in their home community, the term "trafficking" is most often used to apply to persons who have moved or are forced from their homes. As The UN Special Rapporteur on Violence Against Women has pointed out "[t]he movement or transport of women is such as to place the victim in unfamiliar milieu where she is culturally, linguistically or physically isolated and denied legal identity or access to justice. Such dislocation increases trafficked women's marginalization and therefore increases the risk of abuse, violence, exploitation, domination or discrimination by both traffickers, police officials, the courts, immigration officials, etc."
Migration and exploitation are clearly linked. This is most often due to the discrimination that migrants face because they have been classified as 'illegal' by 'receiving' countries and because employers seek ever-cheaper and less demanding supplies of labour.
Clearly, there are serious human rights abuses occurring in any situation where women, children or men are forced or tricked into travelling to a place where they are coerced into an exploitative labour relationship. How we understand the situation affects the solutions proposed to address the human rights abuses.
Numbers of trafficked persons
One question that comes up repeatedly in discussions of trafficking concerns the extent of trafficking. Estimates of the number of trafficked persons vary widely. The variation can be explained partly by the fact that, since trafficking involves numerous illegal activities, there are no official statistics available. However, the variation is also the consequence of widely differing interpretations of what it means to be trafficked. For example, those who consider all women who are brought to another country to work as prostitutes to be trafficked clearly come up with much larger numbers of trafficked persons than those accept that a woman can consent to work as a prostitute.
Much international migration, including “trafficking”, occurs in a context of global economic inequalities and a systematic failure to respect the basic human rights of a large part of the world's population. Large numbers of people find themselves unable to protect and provide for themselves and their families in their own homes. At the same time, efforts by governments to restrict migration prevent most of the world (and especially women) from migrating legally. While migration controls are enforced, there remains in the countries of destination a demand for exploitable labour. Women and girls are particularly vulnerable to being caught in the middle of these conflicting pressures, because of gendered social, economic, cultural and political systems
This context leads to widespread human rights abuses of many of those people who seek to leave home or who live and work in situations of varying degrees of exploitation. This abuse and exploitation is, therefore, shaped not just by those people labelled as 'traffickers' but also by governments, employers and those within 'receiving' countries who accept discrimination against people on the basis of their nationality and immigration status.
Different interpretations of trafficking
Some groups use trafficking as a framework to view the situation of poor migrants very broadly. This approach emphasizes the widely shared experiences of deception, coercion and exploitation (although they may be experienced in different degrees).
Others use trafficking to cover the situation of the much smaller group of migrants who do not consent to the exploitative situation they are in but who are forced to remain in it, usually by violence or threat of violence. This approach recognizes that some migrants are experiencing extreme forms of coercion.
Still others question whether it is useful to use the trafficking framework at all, on the grounds that it does not correspond to migrants' own experiences and does not address the problems faced by the vast majority of undocumented migrants. They are concerned that by presenting migrants as victims of trafficking, the role of women as active agents is obscured and attention is not paid to the forces that make the migrants vulnerable to exploitation.
Measures chosen to respond to trafficking obviously depend on one's analysis of the problem.
Law enforcement approach and its shortcomings
Governments involved in negotiating the Palermo Protocol showed that they analyzed the problem as one of international crime and their solution was one of law enforcement. It is a Protocol to Convention against Transnational Organized Crime. Although the Protocol does include measures to protect trafficked persons, these are [at the bottom of government's priority list and] not made strict requirements and the focus is rather on criminalizing the traffickers.
People who traffic in human beings deserve to be brought to justice. However, an approach focusing on punitive measures against traffickers leaves aside the role other parties play in the violations of migrants' rights. This includes the role of the state and its officials in restricting women's movement across borders through restrictive and discriminatory immigration policies and the role of employers and those who accept the discrimination faced by migrants.
Another criticism of the law enforcement approach is that it functions as an extension of states' efforts to curb migration. This view seems to be supported by the emphasis laid on measures of repression, while the rights of those trafficked are given a lower priority. In many anti-trafficking programs, the trafficked persons are sent home, even though in many cases women had compelling reasons to leave in the first place. Combating trafficking without addressing the need for women to be able to migrate in safety does not get to the root of the problem.
Programs offering status to trafficked persons
An alternative approach is to allow trafficked persons to regularize their status in the country to which they have been trafficked. Some countries, including the US, have such programs. However, where testifying against their traffickers is a condition of receiving status, trafficked persons may be unwilling because they fear that this would put themselves or their families at risk.
In some cases, trafficked persons should be recognized as refugees. The UNHCR has issued guidelines on applying the refugee definition to victims of trafficking and persons at risk of being trafficked.
The Canadian Council for Refugees (CCR) is calling for measures to adequately protect the rights of trafficked persons in Canada, in particular through legislative amendment (or in PDF version). The CCR also urges Canadians to educate themselves about the realities of trafficking and to take action in favour of the rights of trafficked persons.
The CCR has identified the following principles to guide responses to trafficking
- Non-punitive: Measures must not penalize trafficked persons
- Human rights: Measures must be guided by and be respectful of the human rights of trafficked persons
- Economic rights: Measures must be guided by and be respectful of the economic rights of trafficked persons
- Supportive services: There is a need for supportive services for trafficked persons
- Gender and race analysis: A gender and race analysis should be brought to any consideration of trafficking issues
- Inclusive of trafficked persons: Discussions about trafficked persons should include trafficked persons themselves
The issue of trafficking in women is one that the Canadian Council for Refugees, through its Gender Issues Core Group, has been following for several years. In December 2001, CCR adopted a resolution acknowledging the needs of trafficked women in Canada and the fact that NGOs are not necessarily sensitized and responsive to their needs. The CCR also commented on the inadequacy of C-11 (now enacted as the Immigration and Refugee Protection Act) to respond to the needs of trafficked persons.
In February 2000, the CCR produced a paper, Migrant smuggling and trafficking in persons, as part of ongoing efforts to give input on the development of the UN protocols on smuggling and trafficking.
In 2003, the CCR launched a project in 2003 with the goal of developing the capacity among Canadian NGOs to respond appropriately to the needs of trafficked persons in Canada, especially women and girls, and to work towards the eradication of forced labour in Canada. The project organized a series of meetings, regionally and nationally, to consult, network and develop recommendations. A report, Trafficking in Women and Girls, Report of Meetings, was produced in February 2004.
The CCR continues to lead and coordinate activities across the country aimed at moving forward with the recommendations developped through the meetings, particularly with respect to raising public awareness and advocating for measures to protect trafficked persons.
Trafficking is a term that focuses on the international dimensions of the problem. While this is important, it can be misleading in that it may suggest that trafficking is a "foreign" problem that has been imported from abroad. It is therefore important to recognize that trafficking is a form of forced labour and that it responds to demands in Canada. It is a Canadian problem.
Canadian law criminalizes trafficking, rightly treating it as a very serious crime and imposing heavy penalties on those found guilty of trafficking. The only place in the Immigration and Refugee Protection Act where trafficked persons are mentioned is in the regulation which includes having been trafficked as a factor in favour of detention, including for children. There is nothing in the law to protect the rights of trafficked persons specifically.
Temporary Residence Permits
In May 2006, the Canadian government issued new guidelines for temporary residence permits for victims of human trafficking (see news release: ‘Assistance for victims of human trafficking’. The CCR welcomed the move as a step in the right direction (see release CCR welcomes emergency protection measure for trafficked persons).
However, in the view of the CCR, the temporary residence permits have proven inadequate: they are discretionary and are not always offered to trafficked persons; they impose an unreasonable burden of proof on the trafficked person; and the mandatory involvement of law enforcement agencies has deterred some trafficked persons from applying.
In 2007, after the new guidelines were issued, a woman was apprehended at the US-Canada border. The Canadian authorities interviewed her and concluded that she had been trafficked. However, she was not offered any protection – instead she was held in detention and quickly deported, without even being given the opportunity to meet with a lawyer.
The Palermo Protocol
- The United Nations Convention Against Transnational Organized Crime and its two supplementary Protocols were signed by 120 states of 148 present in Palermo, Italy in December 2000.
- The Trafficking Protocol recognizes the need for a combined approach that integrates effective prevention of trafficking with the prosecution of traffickers and the protection of human rights and assistance to victims of trafficking.
- Over 140 NGOs participated in the negotiations leading to the signature of the instruments in Palermo. The NGO coalition worked to ensure that the Convention and its Protocols were consistent with the human rights principles expressed in various international instruments. However, many NGOs have been highly critical of the protocol, notably because it addresses trafficking within the context of organized crime, rather than within the framework of migrants' rights. The Protocol does not acknowledge the responsibility of states for creating the conditions within which trafficking flourishes. It frames anti-trafficking measures as migration control measures.
- The text calls on States parties adopt measures to:
- Prevent trafficking in persons, especially women and children, as well as to hunt down and punish international traffickers
- Boost cooperation among nations to combat trafficking more effectively
- Protect trafficking victims and help them return safely to their own or a third country
- Inform the public about trafficking and its negative consequences for both traffickers and victims.
United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children (Palermo Protocol)