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

duration of the suspected exercise of powers attaching to the right of ownership is another
factor that may be considered when determining whether someone was enslaved. 95
As mentioned above, the absence of slavery does not create an absence of traffi cking, since
exploitation may well take place outside slavery like situations. It may seem evident but
too often the mistake is made that exploitation below the threshold of slavery excludes
that the crime of traffi cking has been taking place or effectively equalling traffi cking
with slavery which is incorrect and would exclude many cases which actually are clear
traffi cking cases.
Exploitation of the prostitution of others and other forms
of sexual exploitation
In 1949 the Convention for the Suppression of the Traffi c in Persons and the Exploitation
of the Prostitution of Others was adopted. The Convention represents a step forward
compared to previous anti-slavery conventions because it uses a race, gender and age
neutral terminology, not only being applicable to white women and children, but more
generally to persons, including also men and boys. But the Convention proved ineffective
in protecting the rights of traffi cked women and combating traffi cking. It does not take
a human rights approach, it does not regard women as independent actors endowed
with rights and reason and it excludes a vast number of victims by focusing only on
prostitution. 96
Neither “exploitation of the prostitution of others” nor “other forms of sexual exploitation”
is defi ned in the Palermo Protocol, partly due to the discussion taking place regarding
prostitution and the possibility of prostitution not always amounting to exploitation
mentioned elsewhere in this paper. The Travaux Préparatoires mentions that the Protocol
addresses the exploitation of prostitution and other forms of sexual exploitation only in
the context of traffi cking in persons. The terms “exploitation of prostitution of others”
or “other forms of sexual exploitation” are not defi ned in the Protocol. The Protocol is
therefore without prejudice to how State Parties address prostitution in their respective
domestic law. 97 This leaves State Parties free to decide how to deal with the phenomenon
in their national systems and allows the anti-traffi cking discussion to transcend the general
debate about the rights and wrongs of prostitution to a signifi cant extent. 98
Compared to other industries the sex industry has attracted a lot of attention from
both traffi ckers and researchers (the attention given from researchers may even be
proportionately bigger than the one given by traffi ckers as will be examined below). The
95 Kunarac, para 542.
96 Report of the Special Rapporteur on violence against women, its causes and consequences. UN DOC
E/CN.4/2000/68 para. 22.
97 UN DOC A/55/383/add.1 para. 64.
98 Report of the Special Rapporteur on the human rights aspects of the victims of traffi cking in persons,
especially women and children, UN DOC E/CN.4/2006/62/Add.2 para. 33.
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