The Estrangement of the Trafficking in Persons Protocol from its Parent Treaty against Transnational Organized Crime

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol) entered into force in 2000. Now, a quarter of a century after its birth, those who wield the Protocol in their work rarely recall its full name. That it ‘supplements’ the Convention is all but forgotten, as it is abbreviated to ‘the Trafficking Protocol’ or even ‘the’ Palermo Protocol as if it is the only one. The Trafficking Protocol exists alongside siblings on smuggling of migrants and on firearms. The first article of each is identical, stating that it is to be interpreted together with Convention, that the provisions of the Convention apply to it too, and that offences established by each – being that of ‘trafficking in persons’ in the case of the Trafficking Protocol – are to be regarded as offences established in accordance with the Convention. This paper posits that despite the inviolable connection between the Protocol and its parent Convention that was forged in law, they have been severed in practice. The argument made is that the various agendas brought to the negotiations of the Protocol are evident in how the Protocol is interpreted and implemented. State and non-State counter-trafficking stakeholders approach the Protocol not in line with what that treaty says, but rather according to how they wished the law had landed. Between States using it to securitize borders and criminalize the wrong people, and NGOs using it to advocate for or against sex worker rights and migrant labour rights, are few examples of the Protocol being effectively deployed in service of its primary purpose; being to combat the transnational organized criminal groups involved in trafficking of human beings. Consideration of how the prevention, protection and cooperation purposes of the Protocol have been pursued, reveals how States parties have failed to implement these instruments as they were intended. The bifurcation of the Protocol from the UNTOC has frustrated efforts against organized criminal groups involved in the trafficking in persons, highlighting the urgent need to restore the relationship between these instruments.