Disregarding Aristotle'S Motto 'Ubi Societas Ibi Ius': The biased genesis of human trafficking protocol and the consequences on its enforcement
| Autor | Teresa Albano - Stefano Volpicelli |
| Cargo | Independent expert - Independent expert |
| Páginas | 174-202 |
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 5 - Nº 02 - Ano 2016 に Migração, Mobilidade & Direitos Humanos
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
174
DOI: 10.18351/2179-7137/ged.v5n2p174-202
DISREGARDING ARISTOTLE’S MOTTO “UBI SOCIETAS IBI IUS”:
THE BIASED GENESIS OF HUMAN TRAFFICKING PROTOCOL
AND THE CONSEQUENCES ON ITS ENFORCEMENT
Teresa Albano1
Stefano Volpicelli2
Abstract: Aristotle’s motto “Ubi societas
ibi ius” reminds us not only of the fact that
where each society produces its own
norms and regulations, but also that there
must be a close inter-relation between the
social reality of a phenomenon and its
normative framework in order for a law to
be effectively enforced. The definition of
human trafficking contained in the
Palermo Protocol was strongly influenced
by the complex negotiations featuring
different approaches, attitudes and
political agendas. This essay will analyze
the core contents of the Protocol, from the
title to the definition of trafficking, as well
as the constitutive elements of the crime,
exploring how the legacy deriving from a
biased discourse on the trafficking
phenomenon did not allow to harvest the
1 Independent expert. Email: albanoteresa@yahoo.it.
2 Independent expert. Email: svolpicelli@libero.it.
3 One o f the three Protocols (the other two are the Protocol against the S muggling of Migrants by Land, Sea
and Air and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms) adopted by the United
Nations in the framework of the Convention against Transnational Organized Crime .
full potential of international law as a
guiding tool and a common platform for
States’ action. As a consequence, the
Protocol’s definition is significantly
ambiguous and de facto results in its often
difficult and uneven transposition at
national level.
Keywords: human traffic. human rigths.
Law.
Introduction
The UN Protocol to Prevent,
Suppress and Punish Trafficking in
Persons, Especially Women and Children3
(also known as trafficking protocol),
defines trafficking as the recruitment,
transportation, transfer, harbouring or
receipt of persons, by means of the threat
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 5 - Nº 02 - Ano 2016 に Migração, Mobilidade & Direitos Humanos
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
175
DOI: 10.18351/2179-7137/ged.v5n2p174-202
or use of force or other forms of coercion,
of abduction, of fraud, of deception, of the
abuse of power or of a position of
vulnerability or of the giving or receiving
of payments or benefits to achieve the
consent of a person having control over
another person, for the purpose of
exploitation. Exploitation shall include, at
a minimum, the exploitation of the
prostitution of others or other forms of
sexual exploitation, forced labour or
services, slavery or practices similar to
slavery, servitude or the removal of
organs.
According to this definition,
human trafficking is the process through
which persons are deceived or coerced to
move from their place of residence to
another place where they will be exploited.
The phenomenon that we today
call human trafficking became visible in
the early 1990s and turned into a source of
social and political alarm when in Western
Europe thousands of girls originating from
Eastern European and African countries
were involved in the sex and adults’
4 Between 2010 and 2012, victims with 152
different citizenships were identified in 124
countries across the globe. Moreover, trafficking
flows - imaginary lines that connect the same origin
entertainment industry. In the same years,
an increasing level of exploitation of
migrant workers particularly in
agriculture, manufacturing and
construction, was also observed. Since
then, human trafficking reached global
proportions4.
Despite the appeals from
prominent Representatives at regional and
international level, it is undeniable that the
actual number of cases that are
successfully prosecuted is lamentably low
compared to the estimated scope of the
problem. The impression, particularly in
the “experts’ circles”, is that something is
missing and that there is the need to
understand why the “fight” against the
“scourge” seems far from reaching
significant goals.
At the time of the Protocol’s
formulation, human trafficking was
mainly “narrated” as a gender-based
problem, the result of the prevarication and
abusive behaviors of male over female.
Therefore the phenomenon was perceived
as involving mainly vulnerable and
country and destination country of at least five
detected victims – criss-cross the world (UNODC
2014)
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