Traffic in human beings: at the intersection of criminal justice, human rights, asylum/migration and labor.

• Author: Edwards, Alice

1. TRAFFICKING IN CONTEXT

   Trafficking in human beings is a worldwide phenomenon that affects the lives of hundreds of thousands, if not millions, of people each year. (1) The United Nations Office on Drugs and Crime (UNODC) reports that human beings are trafficked from 127 source countries into 137 destination countries, across all geographical regions. (2) Over the past decade, widespread attention has been paid to this issue. Governments in ever increasing numbers have adopted laws, policies and programs to combat and to criminalize trafficking, as well as, in some instances, to offer protection to its victims. (3) International organizations and bodies with mandates over transnational organized crime, refugees, migration, human rights or labor have issued statements or guidelines on trafficking, or have embarked upon deterrence, prevention, or protection programs at the field level. (4) Non-governmental organizations have taken up the issue with fervor, (5) while the academy has studied it from a range of disciplinary perspectives. The issue remains complex, not least due to the large number of legal instruments which touch upon obligations relating to trafficking and the associated international agencies that this implicates.

   This article explores the issue of trafficking in human beings from four crosscutting and intersecting areas of international law: criminal justice, human rights, asylum/migration, and labor. It is argued that trafficking in human beings is a complex phenomenon that cannot be readily understood by focusing on only one of these areas of study. This may seem obvious, yet many international and government agencies and individuals working on the issue of human trafficking come from isolated and distinct disciplines. At an international level, various United Nations (UN) and regional bodies view human trafficking with a particular perspective in mind, usually dictated by the scope and limits of their mandates. While there has been an improved level of coordination between different UN organizations over the last five years or so in relation to trafficking, it appears to have occurred on an ad hoc basis, and without the designation of a lead (or central) authority. Many inter-governmental or inter-agency working groups and bodies lack legal personality, transparency, or any implementation mandates. Moreover, international instruments on trafficking--such as those on slavery, migrant workers, refugees/asylum, women's rights, children's rights, forced labor or transnational organized crime--offer a patchwork tapestry that has yet to connect all the dots or to fill all the gaps. Rarely are individual instruments comprehensive or sufficiently inter-connected. Even when an instrument incorporates provisions touching upon a number of these areas of law, it is still usually weighted heavily in favor of one of them.

   Meanwhile, national governments have tended to approach trafficking in human beings principally from a criminal justice/prosecution or an immigration perspective, the latter in vigorous and increasing attempts to control irregular migration. It is widely acknowledged that lack of or inadequate support and coordination between different branches of government is one of the major obstacles to the effective prevention of and response to trafficking at the national level. Where police, immigration services and community services do not communicate or cooperate, prosecutions collapse. This may occur because, for example, victims are not given the type of protection or stability they need and may refuse to testify. Similarly, immigration or border control measures that stop potential trafficking victims from boarding planes or crossing borders do little to curb the rate of trafficking, but rather push back potential victims to be trafficked elsewhere or for their traffickers to try again another day. Moreover, immigration control measures that do not attempt to distinguish between individuals who have been smuggled as opposed to those who have been trafficked or who are at risk of future exploitation, can make individuals vulnerable to deportation and render them unable to speak up about their ordeal. As a result, police lose the opportunity to gather relevant and important information about trafficking routes and activities, and potential or actual trafficking victims are exposed to further risks. These difficulties at the national level in terms of the organization of government are largely mirrored at the international level. It is possible to draw parallels between, for example, the roles and focus of national/local police and the same of the UNODC and its associated instruments that treat trafficking principally as an issue of organized crime; between immigration services and their wide discretion at the national level and the absence of an international migration law (6); and between community, social and child services at national and local levels and the myriad international human rights treaties and the large number of UN agencies that deal with related concerns.

   What is clear is that the divisions between these four areas of law--criminal justice, human rights, asylum/migration, and labor--can have a direct impact on the understanding of the phenomenon and the approach taken to prevention, protection, and redress, whether at an international or a national level. This article is concerned with these divisions at the level of international law only, while noting that if efforts to combat trafficking are to be effective, such divisions need to be resolved at the national level also. It is argued that reconciling these different areas of law is particularly important in combating trafficking, more than in relation to other violations of human rights, due to the transnational character of the abuse, which frequently implicates more than one State as a source, transit or destination country, each with inter-linked obligations. Similarly, there may be difficulties in utilizing human rights procedures to address violations in which two or more States may be implicated. (7) This is to be distinguished from other human rights violations that typically occur within the boundaries of a single State. Even though several of the key trafficking treaties limit their application to transnational trafficking, it is acknowledged in this article that not all trafficking has an international dimension.

   This article is organized around these four areas of law. An overview of relevant instruments is presented under each of these headings, focusing on definitions/concepts, prevention strategies, victim protection, and enforcement mechanisms. Where relevant, overlap between these areas of law is noted and analyzed. Of course, any demarcation of this kind will suffer from a degree of artificiality, not least because not all instruments can be classified neatly under a single theme. Nonetheless, an attempt has been made to do so based upon each treaty's principal objective. From this overview, an analysis follows and asks whether these varying approaches can be reconciled conceptually, normatively, and institutionally; or whether this diversity operates only to confuse, conflate, and undermine efforts at the international level to address and respond to human trafficking. It is argued that the uneven emphasis on particular components of trafficking can and does work against the effectiveness of an overall legal response.

2. CRIMINAL JUSTICE

   1. Trafficking-Specific Treaties

      1. Definitions and Concepts

         The earliest trafficking-specific treaties do not offer any definitions of human trafficking, but they do set limits on the scope of international law in relation to the issue. Both the 1904 International Agreement for the Suppression of the White Slave Traffic (1904 White Slave Traffic Agreement) (8) and the subsequent 1910 International Convention on the Suppression of the White Slave Traffic (1910 White Slave Traffic Convention) (9) identified victims of the "white slave traffic" as white women or girls and the perceived threat was to their "purity" or "chastity" (10); that is, the concept of trafficking that they dealt with was in relation to so-called "immoral purposes" (11) or prostitution. No distinctions were made between forced or voluntary prostitution, or to issues of consent.

         With the creation of the League of Nations came a general mandate over trafficking in women and children. (12) Notably, the UN Charter creating its successor does not contain a trafficking-specific provision (or in fact any other specific human rights provisions), although it does refer to human rights in a general sense. (13) In addition to the anti-trafficking provision in the Covenant of the League of Nations, the League concluded two further trafficking treaties, namely the 1921 Convention for the Suppression of the Traffic in Women and Children (14) and the 1933 International Convention for the Suppression of the Traffic in Women of Full Age. (15) The former expands the understanding of trafficking to apply to not only women and girls, but also to boy children. Like the earlier treaties, these instruments cover trafficking for the purposes of prostitution only. The first United Nations attempt to promulgate a treaty on trafficking was the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949 Trafficking Convention). (16) Although it adopted more gender-neutral language by referring to "persons" rather than to women and/or children, it still concerned trafficking for the purposes of prostitution, regardless of the consent of the "victim"; and the political focus remained squarely on women and children.

         More recently, the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000 TP), (17) supplementing the UN Convention on Transnational Organized Crime, (18) offered the first ever international...