What are the Palermo Protocols and how do they affect Foreign Domestic Workers?

Background


The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children is one of the three supplementary Palermo Protocols to the United Nations Convention against Transnational Organised Crime (UNTOC), also known as the Palermo Convention[1]. The convention was drafted and signed in November and December 2000 respectively and came into effect in September 2003.


Although the Chinese government ratified the protocol on the 8th February 2010, it does not apply to Hong Kong (HK)[2]. With around 370,000 foreign domestic workers[3] in Hong Kong, this may come as a surprise to some. So what exactly is the Palermo Protocol and why doesn’t it apply to Hong Kong?



What Does The Protocol Involve?


Article 3(a) of the Protocol defines “trafficking in persons” (TIP) by assigning three elements to it, all of which must be present to constitute TIP:


1. The act: “recruitment, transportation, harbouring or receipt of persons”.

2. The means used: “force or other forms of coercion… deception”.

3. The purpose: “exploitation”, which includes “sexual exploitation, forced labour… servitude or the removal of organs”.



How Does It Affect Foreign Domestic Workers?


Hong Kong is currently positioned in the Tier 2 Watch List category of the annual Trafficking in Persons Report[4]. This means that it is currently failing to sufficiently meet the minimum standards but has outlined methods of making an effort to comply with the standards and improve the jurisdiction’s situation. This has been recognised in the government’s ‘action plan’.



Why Doesn’t The Protocol Apply To Hong Kong?


Although it was the Chinese government that prevented the Protocol from applying to HK, Matthew Cheung Kin-chung, the Chief Secretary of HK, told the Legislative Council that HK’s legislation already covers TIP[5]. Indeed, there is some validity to this statement. For example Cap. 57 Employment Ordinance holds employers involved in non-payment or under-payment of wages and failure to allow for rest days or holidays criminally liable[6].


However, despite all of these significant measures taken to tackle the issues, HK still does not actually have a definition for ‘human trafficking’. Therefore, greater legislative measures are a necessity in ensuring the protection of workers. In order to develop these laws, the initial step should be to introduce a definition, which could come from international protocols, primarily the Palermo Protocol. This would then be able to form a foundation for further legislation protecting foreign domestic workers.



[1] United Nations Convention Against Transnational Organised Crime and the Protocols Thereto 2000.


[2] ‘Chapter XVIII Penal Matters’ (United Nations Treaty Collection) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-a&chapter=18&lang=en>.


[3] Christy Leung and Raquel Carvalho, ‘Hong Kong Launches Action Plan On Human Trafficking But Critics Sat More Must Be Done’ South China Morning Post (21 March 2018).


[4] ‘Trafficking In Persons Report’ (Department of State - United States of America 2018).


[5] Press Release LCQ5: Combating Trafficking In Persons 2018.


[6] Cap. 57 Employment Ordinance.

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