Traffic in Human Beings: At the Intersection of Criminal Justice, Human Rights, Asylum/migration and Labor
Edwards, Alice, Denver Journal of International Law and Policy
I. 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. …