FROM BONDAGE TO FREEDOM
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is certainly “good enough”. Incorporation of a common understanding
of trafficking into national legislation will allow Parties to cooperate and
collaborate more effectively than ever before. Common definition will
also assert in the urgent tasks of developing indicators and promoting
uniform data collection.
The Protocol recognizes the existence of both voluntary prostitution
and forced prostitution. It intentionally does not define the phrase
“exploitation of prostitution of others or other forms of sexual
exploitation” 204 because Government delegates to the negotiations could
not agree on a common meaning. The traveaux preparatoires indicate
that the Protocol addresses the exploitation of the prostitution of others
and other forms of exploitation only in the context of trafficking in persons.
Thus, the Protocol expressly permits a State to focus only on forced
prostitution and other crimes involving force or coercion and does not
require Government to treat all adult participation in prostitution as
trafficking.
Despite the above achievements, the definition of trafficking falls
short in the area of trafficking in children. The definition only says that
in case of establishing trafficking in children evidence of force or coercion
is not required. But it does not include an explicit acknowledgement of
the fact that children have special rights under international law and in
particular in the light of the Convention on the Rights of the Children;
that child victims of trafficking have special needs that must be recognized
and met by the States. As pointed by the informal group consisting of the
Office of the UN High Commissioner for Human Rights (UNHCR), in a
joint submission to the Ad-Hoc committee that in dealing with child
victims of trafficking, the best interests of the child including the specific
right to physical and psychological recovery and social integration are to
be at all times paramount. They called for making assistance and
protection provisions for children non-discretionary or otherwise
dependent on the decision of national authorities. However, a proposal
to include the above and to expand the list of end-purposes of trafficking
204
Supra note 40, p.17.
205
ILO Convention 182 identifies the Worst Forms of Child Labour as: (a) all forms of slavery or
practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom,
and forced or compulsory labour, including forced or compulsory recruitment of children for
use in armed conflict; (b) the use, producing or offering of a child for prostitution, for production
of pornography or for performance; (c) the use, procuring or offering of a child for illicit activities,
in particular for the production and trafficking in drugs a defined in relevant international treaties;
(d) work which, by its nature of the circumstances in which it is carried out is likely to harm the
health, safety or morals of children.