The drafters' element of control in the implementation of the
Protocol was their determination of how stringent the provisions within
the Protocol would be. Understandably, the more stringent the provisions,
the less willing nation states might be to ratify the document. However, the
drafters made conscious decisions to determine which provisions would
require the member states to enact certain measures versus which
provisions would merely encourage nation states to undertake initiatives. This discrepancy in the Protocol's balance is clearest when examining
the provisions associated with prosecuting traffickers against the provisions
intended to protect victims and prevent trafficking. Article 5 of the
Protocol establishes that "[e]ach State Party shall adopt such legislative and
other measures as may be necessary to establish as criminal offences the
conduct set forth in article 3," which provides the definition of
trafficking. 0 2 In contrast, when addressing the protection of victims the
Protocol includes qualifiers to states' responsibilities. The Protocol's
establishment of victim protection includes, "Each State Party shall
consider implementing measures to provide for the physical, psychological
and social recovery of victims of trafficking." 03 Likewise, "Each State Party
shall take into account, in applying the provisions of this article, the age,
gender and special needs of victims."'o Finally, "Each State Party shall
endeavour to provide for the physical safety of victims of trafficking in
persons while they are within its territory.o105 The requirements that states
"consider," "take into account," and "endeavor to provide" for victim
protection are weak, and create an unbalanced approach to addressing
human trafficking.