Trafficking in human beings: human rights and ... - unesdoc - Unesco

parents nor the children (and in some instances the fi rst person in the chain of traffi ckers/
smugglers/transporters/employers) were aware of the deceit and subsequent exploitation
until afterwards. 65 Proving deception is not simple. Perhaps it is most easily determined in
cases of replacement contracts where the contract signed before departure for the country
of origin can be compared with the replacement contract on arrival at the country of
destination. The extent to which the replacement contract is signed voluntarily also needs
to be resolved. 66 It cannot be assumed that once the migrant worker has arrived (s)he will
have little choice but to agree. Other than that, if deceived, or if expectations on arrival
were not met, a victim’s statement may not be suffi cient for prosecution since it may be
assumed that, if an agent were asked if he or she had deceived the worker, the answer
would be “no”. Family members and friends of the alleged victim could be interviewed
for verifi cation of original expectations, but would they be accepted as reliable or more
reliable that the alleged victim? 67 Deception may only be clear in extreme cases. 68
Abuse of a position of vulnerability
The “abuse of a power or of a position of vulnerability” contained in Article 3 of the
Protocol is understood to refer to any situation in which the person involved has no real
and acceptable alternative but to submit to the abuse involved. This is to acknowledge that
many traffi cked people are under the infl uence of someone to whom they are vulnerable;
such as a person holding a position of offi cial authority or a person who is infl uential to
them such as a parent or spouse. It is logically and legally impossible to consent to being
exploited where consent has been obtained through improper means, or in the case of
children, where their particular status as vulnerable persons makes it impossible for them
to consent in the fi rst place. 69
The terms “abuse of a position of vulnerability”, and the UN’s interpretive note on that
wording, make it clear that traffi cking can occur without any use of force. The defi nition
recognizes that many traffi cked people are told what to do by someone close to them,
such as a parent, a spouse or a community leader. Persons in these situations may have no
culturally acceptable or legal means to refuse and so they “submit” to the situation. They
are still victims of traffi cking. 70
65 Jureidini, R.: Traffi cking and Contract Migrant Workers in the Middle East.
66 This practice began in Lebanon in 2006 following the Philippines government’s insistence on
minimum contractual requirements before a migrant domestic worker can leave the country legally.
67 Jureidini, R.: Traffi cking and Contract Migrant Workers in the Middle East.
68 Ibid. In a questionnaire administered to migrant domestic workers in Lebanon, interviewees were
asked if there were any differences between what they thought they were coming to and what they
found when they arrived. Very few interviewees answered this question which suggested that they
did not fully understand question itself, or they did not know or remember what was written in the
contracts they signed in the fi rst instance.
69 UNGIFT: The Vienna Forum to fi ght Human Traffi cking 13-15 February 2008, Austria Center
Vienna Background Paper 023 Workshop: The Effectiveness of Legal Frameworks and Anti-Traffi cking
Legislation. p. 5.
70 Jordan, A.D.: The Annotated Guide to the Complete UN Traffi cking Protocol, p. 8.
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