2 0 1 1 T RA FF I C K IN G IN P ER S ON S RE P OR T
The TVPA and the Palermo Protocol The Trafficking in Persons Report monitors countries’ anti-trafficking efforts against minimum standards set forth in the U.S. Trafficking Victims Protection Act of 2000 (Div. A, Pub. L. 106-386), as amended (T VPA), not the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), which supplements the UN Convention Against Transnational Organized Crime. The standards in the T VPA, however, are largely consistent with the framework for addressing trafficking set forth in the Palermo Protocol, both in form and content. Both define trafficking in persons as a set of acts, means, and purposes. Both emphasize the use of force, fraud, or coercion to obtain the services of another person. And both acknowledge that movement is not required, framing the crime around the extreme exploitation that characterizes this form of abuse. Enacted just six weeks before the Palermo Protocol, the T VPA not only meaningfully effects the Thirteenth Amendment to the U.S. Constitution, but also ref lects the norms of international anti-slavery law. Section 102(b)(23) of the T VPA explains: [ t]he international community has repeatedly condemned slavery and involuntary servitude, violence against women, and other elements of trafficking, through declarations, treaties, and United Nations resolutions and reports, including the Universal Declaration of Human Rights; the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the 1948 American Declaration on the Rights and Duties of Man; the 1957 Abolition of Forced Labor Convention; [and] the International Covenant on Civil and Political Rights… The T VPA’s minimum standards measure a country’s efforts to combat trafficking under the “3P” paradigm: prosecution, protection, and prevention. Those three Ps are also themes in the first sentence of the preamble to the Palermo Protocol: “Declaring that effective action to prevent and combat trafficking in persons, . . . includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking” (emphasis added). Indeed, this approach permeates both instruments: • P rosecution: Article 5 of the Protocol requires that States Parties criminalize “trafficking in persons,” as defined by the Protocol, and the first of the T VPA’s four minimum standards measures whether countries prohibit and punish all “severe forms of trafficking in persons”, as defined by the Act. These international and U.S. law definitions, although divergent in some respects, largely cover the same body of criminal conduct. • I n addition, Article 11 of the UN Convention Against Transnational Organized Crime, which applies to the provision of the Palermo Protocol mutatis mutandi, requires that States Parties ensure that criminal sanctions for trafficking in persons take into account the gravity of the offense, and the T VPA’s second and third minimum standards similarly measure countries’ punishments for trafficking. • P rotection: Articles 6 and 7 of the Palermo Protocol call on States Parties to adopt specific measures for victim recovery and to consider adopting measures to allow victims to remain in the country’s territory in appropriate cases; likewise, one criterion relevant to the T VPA’s fourth minimum standard – that a government makes serious and sustained efforts to eliminate trafficking – measures the strength of countries’ victim protection efforts, including whether legal alternatives to removal exist. • P revention: Palermo Protocol Article 9 requires States Parties to establish “comprehensive policies” to prevent trafficking and adopt or strengthen measures to reduce demand that fosters exploitation; while three criteria relevant to the fourth minimum standard in the T VPA also measure governments’ prevention and demand reduction efforts. Thus, although each TIP Report presents assessments under American law, the standards they build from are firmly rooted in international law.