INCONSISTENT TRAFFICKING OBLIGATIONS AND HOW GUYANA GOT CAUGHT IN THE MIDDLE.

• Date: 22 March 2018
• Published date: 22 March 2018
• Author: Longer, Sarah
• Record Number: 550093691
• Author: Longer, Sarah

INTRODUCTION

Human trafficking is one of the greatest human rights issues facing the world today. (1) Trafficking refers to the "recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat 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 the control over another person, for the purpose of exploitation." (2) Coined "present-day slavery," human trafficking presents a severe problem globally. (3) By comparing today's practices of trafficking to the atrocities of the Trans-Atlantic Slave Trade, advocates hope to bring this human rights issue to the forefront. (4)

The globalization seen through colonization and the Trans-Atlantic Slave Trade has enabled human trafficking to exist at the level at which it does today. (5) It is estimated that approximately 20.9 million people have been involved or victimized by forced labor or trafficking practices. (6) The phenomenon of human trafficking, as we understand it today was first brought to the attention of the world in the 1990s, at a time when traffickers were able to take advantage of "transparent borders," increased modes of communication, and "political and economic upheaval." (7) These conditions lead to the displacement and migration of large groups of people. (8) As the world increasingly models itself around a "global community" and a "global economy," the voluntary movement of peoples has increased and so too has the involuntary and coerced movements of people. (9)

The economic incentives of trafficking also contribute to its persistence. Today, human trafficking occurs virtually everywhere in the world. (10) It crosses borders when victims move between source, (11) transit (12) and destination (13) countries. (14) Human trafficking operates on a system of supply and demand, made possible by the inequalities and vulnerabilities which exist between successful and unsuccessful countries in the world market. (15) As there are high profits (150-billion-dollars annually), (16) and relatively few arrests and convictions, (17) traffickers have little incentive to leave this business. Trafficking is a clear example of how globalization, which is inextricably linked to the world economy, has served to increase the prevalence of systems of subjugation and exploitation through slavery. (18)

Source countries and destination countries are equally culpable for the persistence of trafficking. (19) If the demand for vulnerable populations disappears in destination countries, traffickers in supply countries will no longer be incentivized to continue trafficking practices; similarly, if suppliers are impeded from providing victims, traffickers in destination countries will have to look elsewhere or will become obsolete. A recognition of this transactional relationship seems to be absent from the main anti-trafficking legislative and enforcement schemes promulgated by both the U.N. and the United States. (20) This Note will first analyze the mechanisms behind the enforcement of international trafficking laws and agreements which have, to a large extent, been disseminated by the United Nations and the United States. Specifically, this Note seeks to demonstrate how the use of sanctions by the United States, enacted in an effort to make adherence to international anti-trafficking norms compulsory, creates unpredictable standards for compliance and simultaneously disadvantages source countries. (21) This Note will then look to anti-trafficking compliance in the Caribbean and specifically Guyana, to show why source and transition countries continue to struggle to meet international anti-trafficking goals. It will further demonstrate why the current legal framework, the enforcement of the Palermo Protocol through the Trafficking in Victims Protection Act, is not effective, and in fact undermines the goal of international collaboration.

2. HUMAN TRAFFICKING LAWS AND COMPLIANCE

   Both the United Nations and the United States of America have codified clear regulations for the criminalization and suppression of human trafficking. (22) Although many countries have been working towards compliance with these regulations, more needs to be done to eradicate human trafficking. (23) The following protocols, though a step toward the goal of ending human trafficking, are incomplete in their application.

   1. The Protocol to Prevent, Suppress and Punish Trafficking in Persons

      The Protocol to Prevent, Suppress and Punish Trafficking in Persons, (24) ("Palermo Protocol" or simply "Protocol"), was adopted in 2000 by the United Nations and became effective in 2003. (25) At its adoption, the Protocol was commended for providing the international community with the tools and language necessary to finally combat and hopefully end human trafficking. (26) Perhaps the greatest achievement of the Palermo Protocol is that it provided nations (27) with a definition for human trafficking. (28) This definition helps nations to better recognize human trafficking, but the Palermo Protocol is not without flaws. (29)

      The Protocol instructs state parties (30) to create procedures to criminalize persons who participate in human trafficking. (31) The Protocol "requires a comprehensive international approach in countries of origin, transit and destination" and calls for the implementation of "measures to prevent such trafficking." (32) The Protocol further requires that "[e]ach State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences [actions of human trafficking], when committed internationally." (33) These offences are to include, the perpetration of human trafficking, (34) aiding in the commission of human trafficking, (35) and inducing others to participate in human trafficking. (36)

      The Palermo Protocol emphasizes holding accountable those perpetrating, participating, and directing others to perpetrate or participate in human trafficking. (37) Yet the actual mechanics of how state parties should implement its directives in their respective states remains unclear. In relevant parts, Article 9 of the Palermo Protocol gives extensive yet vague prevention and cooperation guidelines for party states to follow. The Protocol calls for "comprehensive policies, programmes and other measures" (38) to "prevent and combat trafficking in persons; and [tjo protect victims... from re-victimization." (39) The United Nations intended this to be achieved through various platforms including coordination between research institutions, the media, and Non-Governmental Organizations. (40) Most specifically, in Article 9(3) and (4), the Protocol calls for States parties to "take or strengthen measures through bilateral or multilateral cooperation" (41) in an attempt to protect vulnerable populations and "discourage the demand that fosters all forms of exploitation of persons." (42)

      The Palermo Protocol, while expansive in its approach, lacks specific, strategic steps for countries to take, providing only a generalized framework for the multilateralism or international cooperation that the United Nations desires. (43) While recognizing that the problem of trafficking needs to be addressed in both source (44) and destination countries (45) simultaneously, the Palermo Protocol fails to provide guidelines for the specific trafficking problems facing individual countries as sources or destinations for trafficking. (46) The absence of concrete guidelines contributes to the difficulty countries face when attempting to adequately comply with the aims of the Palermo Protocol. (47)

   2. Compliance With The Palermo Protocol.

      At its inception, the Palermo Protocol was seen as an overwhelming success in its ability to bring concerns about human trafficking to the forefront of international law. (48) Early in the process, however, the Palermo Protocol was only seen as a stepping stone toward the universal adoption and implementation of anti-human trafficking laws. (49) As previously discussed, the Protocol successfully established a widely accepted and sufficiently broad definition of trafficking. (50) Nevertheless, that definition has been critiqued as "unworkable when applied to nation state legislation" for its lack of uniformity in prosecutorial systems throughout the world. (51)

      One critique of the Palermo Protocol's applicability to individual nation-states comes from its failure to recognize that the efforts, which had been made to combat human trafficking in the time predating the Protocol, were state-centered in their approach. Because the Protocol focused on international norms, and did not adequately address how preexisting enforcement systems directed at domestic trafficking ought to be included within the international framework, it did not act as a complete enough measure to eradicate trafficking. (52) The Protocol reflects the belief that "globalization has largely facilitated human trafficking while accordingly serving to impede counter-trafficking efforts" and therefore, "[s]tate-centered approaches to combat trafficking are proving obsolete and futile since human trafficking knows no state boundaries." (53)

      Those who support a global response believe the ineffectiveness of human trafficking efforts following the enactment of the Palermo Protocol persist because of its slow ratification in nation states, and because the Protocol was not given the "teeth" necessary for an easy or effective implementation. (54) The Trafficking Victims Prevention Act's (55) system of sanctions is believed to be the necessary encouragement required for nation states to enact and enforce laws addressing human trafficking. (56) Yet, there are understandable concerns about situating the United States as the sole authority for the enforcement of international trafficking law. (57)

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