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Exploitation’ in the Trafficking in Persons Protocol Issue Paper THE CONCEPT OF ‘EXPLOITATION’ IN THE TRAFFICKING IN PERSONS PROTOCOL UNITED NATIONS Vienna, 2015 The description and classification of countries and territories in this study and the arrangement of the material do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. © United Nations Office on Drugs and Crime, 2015 Acknowledgements The present publication was developed by the UNODC Human Trafficking and Migrant Smuggling Section under the overall coordination of Ilias Chatzis and in collaboration with Katharina Peschke and Tatiana Balisova. The publication was drafted by Dr. Anne T. Gallagher (consultant), with the support of Dr. Marika McAdam (consultant), who was responsible for conducting the majority of country surveys. Special thanks are extended to Silke Albert and Simone Heri, UNODC, for their input. UNODC expresses its appreciation to those who attended the expert group meeting in Vienna on 13-14 October 2014 and who provided important input: Ms. Myra Albu (International Organization for Migration), Mr. Saad Salim Aldosari (Qatar), Mr. Ahmad Abdullah Al-Harami (Qatar), Mr. Ahmad Ali Falih Nassir Al-Thani (Qatar), Mr. Alberto Andreani (Organization for Security and Co-operation in Europe), Ms. Fernanda Alves dos Anjos (Brazil), Ms. Lina Arbelaez (Colombia), Mr. Marco Bonabello (Organization for Security and Co-operation in Europe), Mr. Patrik Cederlof (Sweden), Mr. Marcelo Colombo (Argentina), Ms. Damienne Darby (Canada), Ms. Rahel Gershuni (Israel), Ms. Youla Haddadin (Office of the UN High Commissioner for Human Rights), Ms. Rebekah Kilpatrick (Australia), Mr. Adel Maged (Egypt), Mr. Mohamed Mattar (United States of America), Mr. Binoga Moses (Uganda), Mr. Albert Moskowitz (Australia-Asia Program to Combat Trafficking in Persons), Mr. Anh Nguyen (International Organization for Migration), Ms. Dobryana Petkova (Bulgaria), Mr. Wanchai Roujanavong (Thailand), Mr. John Cotton Richmond (United States of America), Ms. Lisa West (Australia) and Ms. Anna Wildt (Switzerland). Thanks are also due to the large number of government officials and practitioners, listed in Annex 3, who gave generously of their time and expertise in helping with the country case studies and reviewing various draft sections of the text. The study was made possible through funding received from the Government of Switzerland. Contents Executive Summary ........................................................................................ 5 1 Background ........................................................................................... 14 1.1 Context of this study ............................................................................. 14 1.2 Mandate and Terms of Reference .............................................................. 16 1.3 Methodology ..................................................................................... 18 1.4 Structure of this paper .......................................................................... 19 2 The concept of ‘exploitation’ in international law and policy .................................... 21 2.1 General insights into the concept of exploitation.............................................. 21 2.2 The concept of exploitation in the context of the Trafficking in Persons Protocol .......... 23 2.3 Forms of exploitation cited in the Trafficking in Persons Protocol ............................ 27 2.3.1 Exploitation of the prostitution of others and other forms of sexual exploitation ........ 27 2.3.2 Forced labour or services .......................................................................................... 30 2.3.3 Slavery or practices similar to slavery ........................................................................ 32 2.3.4 Servitude ...................................................................................................................35 2.3.5 Removal of organs .................................................................................................... 36 2.4 Additional accepted (and implied) forms of trafficking-related exploitation ................ 38 2.5 Conclusions on exploitation in international law and policy .................................. 39 3 National Law and Practice: Overview ............................................................... 41 3.1 States that closely follow the Protocol’s approach to exploitation ........................... 41 3.1.1 Malaysia ................................................................................................................... 42 3.1.2 United Arab Emirates ................................................................................................ 45 3.2 States that generally follow the Protocol’s approach but stipulate additional forms of exploitation ........................................................................................... 48 3.2.1 Bulgaria..................................................................................................................... 49 3.2.2 Colombia .................................................................................................................. 54 3.2.3 Egypt ........................................................................................................................ 59 3.2.4 Qatar ........................................................................................................................ 65 3.2.5 Thailand .................................................................................................................... 69 3.2.6 Uganda ...................................................................................................................... 73 3.3 States that stipulate fewer forms of exploitation than are provided in the Protocol ........ 79 3.3.1 Brazil .......................................................................................................................... 79 3.3.2 Sweden ..................................................................................................................... 85 2 3.4 States that take a different approach to exploitation ......................................... 92 3.4.1 Australia ................................................................................................................... 92 3.4.2 Canada ...................................................................................................................... 98 4 National Law and Practice: Key Findings ......................................................... 104 4.1 Legislative approaches to exploitation: trends, commonalities and differences............ 104 4.2 Insights into specific forms of exploitation .................................................... 106 4.2.1 Exploitation of the prostitution of others / other forms of sexual exploitation .......... 107 4.2.2 Forced labour or services ........................................................................................ 108 4.2.3 Slavery or practices similar to slavery and servitude .................................................109 4.2.4 Removal of organs .................................................................................................... 111 4.2.5 Other forms of exploitation ....................................................................................... 111 4.3 General findings and issues for practitioners ................................................. 113 4.4 Views on guidance for practitioners ........................................................... 116 5 Guidance on policy and practice for further consideration ..................................... 118 ANNEX 1: Issues for consideration and discussion ................................................... 122 ANNEX 2: Survey Instrument ........................................................................... 126 ANNEX 3: List of persons consulted, including expert group meeting participants ................ 130 3 Abbreviations and Acronyms Conference of the Parties to the United Nations COP Convention against Transnational Organized Crime and the Protocols Thereto Open-ended Interim Working Group on the Protocol to Working Group on Prevent, Suppress and Punish Trafficking in Persons, Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime EU European Union European Trafficking Council of Europe Convention on Action against Trafficking Convention in Human Beings Directive 2011/36/EU of the European Parliament and of EU Trafficking Directive the Council of 5 April 2011 on preventing and combating 2011/36/EU trafficking in human beings and protecting its victims ILO International Labour Organization Trafficking Trafficking in Persons Protocol to Prevent, Suppress and Punish Trafficking in Trafficking in Persons Persons, Especially Women and Children, supplementing Protocol the United Nations Convention against Transnational Organized Crime UN United Nations UNODC United Nations Office on Drugs and Crime Organized Crime United Nations Convention against Transnational Convention Organized Crime 4 Executive Summary Article 3(a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention
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