Shared but differentiated responsibility: integration of international obligations in fight against trafficking in human beings.

Author:Gekht, Anna

    Trafficking in persons is a serious violation of fundamental, predominant and non-derogable human rights and freedoms. It is deeply rooted within the very heart of international world order and invokes not only moral, but also legal, economic, social and political implications.

    Although the states have acknowledged the graveness of the consequences of trafficking, government complacency, corruption and lack of political will resulted in unchecked escalation of trafficking in human beings. The connection of trafficking and prostitution, together with strict state immigration policies have stalled international legal and political counter-trafficking efforts. The widespread nature of human trafficking, violations of fundamental principles of international law and human rights it implies, and evident fragmentation and lack of effectiveness and enforcement capacity of current laws, suggest a need for reform.

    The process of trafficking consists of three distinct phases, interconnected but not entirely dependent on each other: (i) the actual act of trafficking; (ii) the subsequent phase of exploitation that the act of trafficking is committed for; and (iii) post-trafficking rehabilitation. (1) The execution of the act of trafficking is independent of the realization of its intended purpose (2) and implies the notion of criminal intent as its main characteristic. The structure of the trafficking chains involves (a) agents in the home state of the victims, (b) the transit states which host the victims on their way to final destination, and (c) the states receiving the victims of traffic. The three distinct components of the chain involve a multiplicity of different countries and thus evoke different aspects of human rights, criminal, immigration, labor and public international law, and imply different international obligations and responsibilities of the states involved.

    Being an international malady, trafficking cannot be solved by independent domestic responses. This essay will argue that in order for the anti-trafficking policies to become successful they must combine and integrate the various obligations of the involved countries into a single non-fragmented framework built on the foundations of the norms of international human rights law. Within this framework, the states of origin, transit and receiving end of the trafficking chain must assume their part of the shared responsibility for ensuring the protection of the vital social, political and economic rights of the victims, as means for preventing the trafficking in human beings and addressing its consequences; while realizing their obligations of international criminal, immigration and refugee law, ensuring deterrence, prevention and adequate remedies for the victims.

    This essay will summarize some of the most pertinent norms and obligations of international human rights relevant for human trafficking. It will analyze the obligations and responsibilities of states deriving from these norms, general principles of international law and specific legal provisions addressing human trafficking directly. On the basis of these normative summaries and implications, it will propose a model of differentiated state responsibility based on a mainstreamed and simplified system of legal human rights commitments integrated within other domains of international law, namely that of criminal and refugee law. By doing so, it will create and discuss in detail a two-fold anti-trafficking model of state responsibility, which will include the responsibility for the act of trafficking; as well as the responsibility for the subsequent exploitation arising out of such 'act'. Among the purposes of trafficking addressed here, prostitution and forced labor aspects will be covered in more detail in this essay.


    Human trafficking is a complex phenomenon that involves various social, political, cultural and legal aspects. It touches upon some of the most sensitive and rudimentary elements of international order, such as the notions of morality and sovereignty, and spreads across the entire globe. In order to provide in-depth analysis of the legal connotations of trafficking, we shall first discuss the scope and magnitude of the phenomenon; analyze some of the main elements, root-causes of the recent escalation and linkages of human trafficking with violations of human rights; and study the definitions of human trafficking contained in various instruments of international law.

    1. The Scope of the Problem

      The International Labor Organization (ILO) estimates there are 12.3 million people in forced labor, bonded labor, forced child labor, and sexual servitude at any given time. (3) The US Department of State approximates that 600,000-800,000 people are annually trafficked across national borders, which does not include millions trafficked within their own countries. (4) Trafficking is the third most lucrative illicit business in the world after arms and drug trafficking and is a major source of organized crime revenue. (5) The initial sale of trafficked persons generates an estimated US$ 7 to $12 billion annually, with subsequent sales generating additional US$ 32 billion a year. (6)

      "The nationalities of trafficked people are as diverse as the world's cultures." (7) South-East Asia and South Asia are home to the largest numbers of internationally trafficked persons, with 225,000 and 150,000 persons trafficked respectively. (8) About 100,000 persons are trafficked from the former Soviet Union, 75,000 from Eastern Europe, 100,000 from Latin America and the Caribbean and 50,000 from Africa each year. (9) In Asia the largest numbers of women are trafficked within one or between multiple regions. In South Asia and Middle East, child trafficking for domestic exploitation is of particular concern, (10)

      Approximately 80 percent of transnational victims are women and girls and up to 50 percent are minors. (11) The majority of cross-border victims are females trafficked into commercial sexual exploitation, with the greater part of persons trafficked within their countries being used for forced and bonded labor. (12) Usually persons who fall into the hands of traffickers desire to leave their countries, seeking to improve their lives through low-skilled jobs in more prosperous states. (13) Child trafficking mostly relies on kidnapped minors or children given by their families to relatives in hope for education and earning opportunities, who in turn sell them into exploitation. (14)

      In many cases the exploitation of victims of traffic is progressive: a person trafficked into one form of labor may be further exploited in another. The victims are often beaten and sexually abused, suffer from forced substance abuse, sexually transmitted diseases and HIV/AIDS, food deprivation, psychological torture, which often lead to death.

      Despite the common misconception, trafficking is as much of a local and regional phenomenon, as it is an international one. A person may decide to travel within or outside his or her own country for a job, and subsequently fall into involuntary servitude. Trafficking also implies placement of the victim in an unfamiliar milieu where he or she is culturally, linguistically or physically isolated and denied legal identity or access to justice. Such dislocation increases the marginalization and, therefore, the risk of abuse, violence, exploitation, domination or discrimination both by traffickers and by state officials represented by the police, the courts, immigration officials, etc.

      Trafficking chain starts with the recruiter or the person facilitating migration and ends with the last person who buys or receives the victim and holds him or her in conditions of slavery or slavery-like practices, forced labor or servitude. Despite the fact that the victims of trafficking are often the victims of crime, they are often perceived and treated as criminals in countries of destination. (15) B. Trafficking--The Dark 'Underside' of Globalization (16)

      Historically, human trafficking has been directly affiliated with prostitution. Consequently, given the ambiguous moral implications of prostitution, the issue of trafficking remained absent from the international political arena for centuries. The moral aspects evoked by this connection were perceived as internal sovereign matter of each state and have traditionally remained within their margin of appreciation. (17) Ironically, the earliest international response to human trafficking grew out of the 1900s movement against growing numbers of women trafficked into prostitution. (18) It specifically focused on the trafficking of white women and girls for the purpose of prostitution or sexual exploitation, reflected by the terms 'white slave traffic' and "the procuring of women or girls for immoral purposes abroad." (19) Consent became the formative factor for determining the trafficking status of white-skinned prostitutes. (20)

      In response to the ineffectiveness of consent-based policies, the international community was forced to gradually agree that consent was an irrelevant parameter in determining and punishing the crime of trafficking. (21) Instead, it was the element of coercion, deception or use of force that set trafficking apart from other forms of persons' smuggling and illegal migration. The resolution of the consent debate had an additional outcome. The authorities dealing with trafficking came to realize that by focusing on trafficking for prostitution and sexual exploitation they failed to address trafficking of women and girls as well as men and boys for other purposes such as bonded/forced labour, child soldiers, domestic work or organ donations. Such widened understanding of the concept of human trafficking has in turn expanded the application of the instruments of international human rights law.

      The recent rise in the scope of international trafficking is attributable to a number...

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