Author - Praneeta Tiwari
Introduction
While we as a society and a generation, tout ourselves for making remarkable strides in doing away with social dogma, intolerance and deviance, we often forget to factor in a rounded perspective regarding the same. In this spiralling state of affairs, where on one end most countries are realising the importance of human rights, the international community is somewhere falling short on checking the ramifications of the crime that thrives behind closed veils, slinky massage parlours, dingy motel rooms and sometimes even in the basements of the very shopping complex we so innocently stroll about in.
Irrespective of our paralysed sense of denial, international reports, studies and statistics have somewhat captured a glimpse of this gruesome situation. A latest Global Report on Trafficking In Persons by the United Nations Office on Drugs and Crime shows that the number of human trafficking cases in 2016 registered a record high number of over 25000.[1]
This raises a pertinent question as to why is there a rampant increase in the number of cases of trafficking in persons in spite of signing various international treaties and conventions with member countries to curb this practice. The numbers reflect the cleft between the pages and pages of programme outlines to control these rising numbers and the actuality of increasing rates of human trafficking cases.
This piece seeks to find the answer to this relevant question by determining the lacunae in international law, which lays down the foundation for several countries to effectively deal with this human rights crisis. It also tries to briefly highlight the sociological reasons for this crime, thereby examining crucial social gaps in this law which might be an integral reason for such a high level of unchecked cases. The primary objective of this piece is, thus, to analyse the existing legal framework regarding human trafficking with a focus on the definitional and regulatory problems in the international statues.
What is the existing legal framework regarding human trafficking?
In order to identify the existing loopholes in the current international law framework, it is important to understand the current legal situation regarding human trafficking.
As astonishing as it may appear, until the late 1990s, there wasn’t a coherent and comprehensive definition as to what constitutes “Trafficking in Persons” (hereinafter referred to as ‘TIP’).[2]
However, this issue was addressed in 2000, when the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,[3] laid down a universally accepted definition of TIP. This Protocol provided different definitions for Adults and Children (below the age of eighteen),[4] thus, attempting to classify offences more lucidly.
Under this Protocol, the term “Trafficking in Persons” for Adults has been defined on three basic parameters which are as follows:-
a) Action -
This includes recruitment, transportation, transfer, harbouring or receipt of persons.[5] Therefore, this determines the manner/mode/medium through which the trafficking takes place.
b) Means -
This includes 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.[6] Therefore, this determines what means are used to traffic the persons and how their consent is obtained for such an act. However, it has been laid down that consent of the victim of TIP is immaterial if the means deployed to obtain the consent were such as enlisted here.
c) Purpose -
This states the purpose as exploitation.[7] Apart from this, a clarification has been made as to what constitutes exploitation. Thus, according to the statute exploitation at a minimum shall include 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.[8]
Therefore it can be summed up that “Trafficking in persons” or TIP in Adults takes place when the adult is subjected to an act, through specific means and for the purpose of exploitation (wherein Action, Means and Purpose shall be determined as per the definition above).
In case of TIP in Children, a slight deviation can be observed in the law, wherein the parameter of ‘Means’ stands nullified.[9] Thus, TIP in children takes place when the child is subjected to an act for the purpose of exploitation.
Now, after stating the nuances of the well-defined definition of TIP, it becomes essential to carefully examine the same in order to test its viability and practicality in real-time application of this law by the member countries, hence, examining the lacunae regarding the same.
Lacunae in the definition of TIP
After carefully examining the laid down definition of TIP, it can be argued that it gives way to some uncertainty and vagueness. The different stances taken by various national legislations and the prevailing difficulties in reporting, monitoring and identification of the victims of TIP corroborates this presence of uncertainty.[10] Such definitional uncertainty is problematic as the Member States are not on a uniform page in ascertaining their obligations to fight this human rights crisis.[11] Therefore, it is necessary to pinpoint, map and address such uncertainties, in order to delve into the mechanics of the incidence of this crime.
Firstly, the nature of consent can be dubiously interpreted under Article 3(b) of the Protocol.[12] The United Nations Office on Drugs and Crime (UNDOC) is of the view that consent is related to the conditions of the work. However, it fails to elucidate the extent or scope of the conditions that would suffice for this provision.[13]
Secondly, the ‘means’ for TIP state coercion as a requisite. However, the definition fails to provide clarity on the extent of such stated coercion i.e. whether coercion here refers to only physical coercion or is inclusive of psychological and financial coercion of victims of TIP.[14]
Thirdly, there is little explanation as to what qualifies as ‘abuse of power’ or a ‘position of vulnerability’ as stated in ‘means’ element. This ambiguity allows for the neglect of socio-economic and cultural position of the victim of TIP.[15] It also fails to mention the refuge which the victim can take in case he/she is subjected to abuse of power following from her own illegal act in the first place.[16]
Fourthly, the presence of ‘purpose’ element renders TIP as a practice which involves mens rea. Nonetheless, it remains silent as to what level of mens rea is required, and the determination of such level is left to the member States which creates unnecessary irregularities in the process.[17]
These are some glaring definitional issues with respect to the present international statute, and it is imperative for the UN and its member states to try to refine such definitions in order to express an unequivocal resolve to deter the practice of TIP.
Now that the core definitions have been carefully looked at, it becomes pertinent to address the regulatory problems with the international law such that if the definitional problems are corrected there must be a smooth transition to implement such statutes.
Regulatory problems in International Law in light of Human Trafficking
It is confounding to note that despite the instructions and definitions laid down in the Protocol, the industry of human traffickers continues to flourish with each passing year. A substantial reason for the same can be the procedural lapses and regulatory problems that are present in the statutes with respect to regulatory guidelines.[18]
The UN Protocol aims to prevent human trafficking by recommending that all the Member States must criminalize the offence of human trafficking.[19] However, under Article 5 which mandates the States to adopt legislation to criminalize the offence, it takes a soft stance towards the actual implementation of this step.
The said Article requests the States to criminalize these heinous offences by adopting legislation “as may be necessary”.[20] The usage of such phrases creates a twofold problem.
Firstly, it creates a wave of confusion among the member States, wherein it becomes difficult to determine the extent to which it is necessary to adopt legislations which criminalize such offences.[21] Secondly, it disincentivizes those governments who believe that they would rather benefit from corrupt practices involved in encouraging human trafficking than to make stringent laws on the same.[22]
Thus, the Protocol should consider the deletion of the phrase “as may be necessary”. Moreover, it can strive to offer an illustrative list as to what acts shall be constituted as criminal offences with respect to human trafficking.[23] These subtle changes shall not only remove the scope for uncertainty and vagueness in interpretation but also set the tonality of the statue in a more serious manner which shall not only persuade but mandate the Member States to strictly comply with the aforesaid provisions. Apart from this, certain paragraphs like the paragraph 2 of Article 3 can be removed and summed up in previous paragraphs in order to provide a lucid picture of the statute and help in the adaptability of the provisions in an efficient manner.[24]
Conclusion
After carefully reviewing the definitions of human trafficking in the international law statue and identifying the regulatory problems it can be rightly stated that the battle to curb this heinous offence is far from won. The Protocol and its underlying provisions need to be dynamic in order to adapt and respond to the ever-increasing rise in the number of cases of TIP.
It is important that a strict tone is set in the foundational spirits of the international law which mandates and authorizes the Member States to be empowered and work tirelessly to eradicate human trafficking. This protocol, which is currently our primary legislative to fight this growing humanitarian concern, needs to be a robust law and not a mere piece of paper that seeks to present hypocritical solutions in the farce of human rights activism.
I believe that a conscious and collective effort by all the Member States at an international level is a dire need in order to actively engage with and defeat those involved in propagating this human rights crisis. The human rights of each and every individual needs to be upheld, respected and celebrated and with a strong commitment for the eradication of human trafficking. Only then can we, as a society, cleanse this travesty upon humanity that is continually plaguing us, ruthlessly, thereby destroying the very foundation of human rights that we so painstakingly have established over eras.
[The author is a Second Year B.A. LL.B. (Hons.) student at NUJS, Kolkata.]
[1] Law and Crime Prevention, Human trafficking cases hit a 13-year record high, new UN report shows, January 29, 2019, available at https://news.un.org/en/story/2019/01/1031552 (Last visited on July 22, 2020) [2] United Nations Human Rights, Human Rights and Human Trafficking, Fact sheet no. 36, available at https://www.ohchr.org/Documents/Publications/FS36_en.pdf (Last visited on July 22, 2020 ) [3] United Nations Gen. Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, (See Art. 3), available at http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCeboo K-e.pdf. (Last visited on July 23, 2020) [4] Id [5] Id [6] Id [7] Id [8] Id [9] Id [10] Kauko Aromaa, "Trafficking in Human Beings: Uniform Definitions for Better Measuring and for Effective Counter-Measures" in Ernesto U. Savona & Sonia Stefanizzi, eds., Measuring Human Trafficking: Complexities and Pitfalls (New York: Springer, 2007) [11] Anne T. Gallagher, The International Law of Human Trafficking 64 (United States of America: Cambridge University Press, 2012) [12] Supra note 3 [13] UNODC, Anti-Human Trafficking Manual for Criminal Justice Practitioners: Module I , 9 (New York: United Nations, 2009) [14] Gallagher, supra note 11 at 32 [15] Ronald J.J Wong, A Critique Of International and Singapore Legal Treatments Of Trafficking in Persons, Singapore Journal of Legal Studies, 179-205 (July, 2014) [16] Id [17] Supra note 13 [18] Uchechukwu Enwereuzor, "Human Trafficking: International Regulatory Problems and Solutions", Law School Student Scholarship, (2013) [19] Supra note 3 [20] Id [21] Enwereuzor, supra note 18 [22] United Nations: Off. of Drugs & Crime, The Role of Corruption in Trafficking in Persons (Nov. 11, 2012, 12:32 PM), available at http://www.unodc.org/unodc/en/human-trafficking/what-is-humantrafficking (Last visited on July 23, 2020) html?ref=menuside (Last visited on July 23, 2020) [23] Enwereuzor, supra note 18 [24] Id