Drafting Human Trafficking Legislation: Binding Rules and Guiding Rules

Abstract

In this article, I devote more focused and in-depth attention to a subject area that has not received the level of attention it deserves-the first topic, which distinguishes between binding conventions and soft principles or guidelines in combating human trafficking. While there have been some references to what is called the soft law of trafficking, I present here a comprehensive study on the sources of human trafficking laws.

In 2000, the United Nations (“UN”) adopted the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (“UN Trafficking Protocol”), which supplemented the UN Convention against Transnational Organized Crime (“TOC Convention”). The UN Trafficking Protocol is binding and constitutes the fundamental international standard that countries must follow in their domestic laws. In addition, several guiding rules have been adopted by the UN; although not binding, they have had profound practical effects on drafting anti-trafficking legislation. This article addresses various guiding rules that are embodied in resolutions, model laws, principles, and guidelines in human trafficking and related areas. These non-binding rules have nonetheless heavily influenced the drafting of domestic laws. Judges should consider using these guiding rules to support their decisions in human trafficking cases decided in accordance with national legislation.