The Role of International Law in Countering Human Trafficking

The Role of International Law in Countering Human

TraffickingJanie A. Chuang

Visiting Assistant Professor of Law American University Washington College of Law

Webinar Overview

• Dimensions of human trafficking• International legal

developments• Current challenges in

implementation of international counter-trafficking laws

Background Statistics (U.S. Dept of State, Trafficking in Persons Report 2004, 2006)

• 600,000-800,000 men, women and children trafficked across international borders each year

• 80% women and girls

• up to 50% are minors

• majority trafficked into commercial sexual exploitation

• 14,500-17,500 trafficked into the United States per year

Background Statistics (ILO Global Alliance Against Forced Labour Report, 2005)

2.5 million men, women and children are victims of trafficking at any point in time

43%

32%

25%forced commercial sexualexploitation

forced economicexploitation

mixed or undeterminedreasons

Background Statistics (ILO Global Alliance Against Forced Labour Report, 2005)

Regional Distribution of Trafficked Forced Labourers

57%

11%

10%

9%

8%5%

Asia and the Pacific -1,360,000Industrialized countries(Europe, USA) - 270,000Latin America andCaribbean - 250,000Middle East and NorthAfrica - 230,000Transition Countries -200,000Sub-Saharan Africa -130,000

Estimated average annual profits

(ILO Global Alliance Against Forced Labour Report, 2005)

Per forced labourer in commercial sexual exploitation (US$)

Per forced labourer in other economic exploitation (US$)

Total profits (million US$)

Industrialized countries

67,200 30,154 15,513

Transition countries

23,500 2,353 3,422

Asia 10,000 412 9,704

Latin America 18,200 3,570 1,348

Sub-Saharan Africa

10,000 360 159

Middle East 45,000 2,340 1,508

World 31,654

Trafficking Defined

U.N. Trafficking Protocol, Article 3(a)

“Trafficking in persons” shall mean 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, or 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 control over another person, for the purpose of exploitation.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Key Elements of Trafficking

(1) an action:recruitment, transportation, transfer, harboring or receipt of person

(2) by means of:threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving of payments or benefits to achieve consent of a person having control over another

(3) for the purpose of exploitation:e.g., the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labor or services, slavery or slavery-like practices, servitude, removal of organs.

Trafficking vs. Migrant Smuggling

Trafficking

• Coercion required (any initial consent is nullified by coercive, deceptive, or abusive actions of traffickers)

• Involves ongoing exploitation of victims (post-arrival) to generate illicit profits for traffickers

• Movement can be international or intra-national

• Afforded victim status under international law

Migrant Smuggling

• Migrant consents to the smuggling

• Ends with migrants’ arrival at their destination

• Movement is always transnational

• Not afforded victim status under international law

Features of modern international migration

• Labor migration is not simply from developing to developed countries – 60% of migrants live in developing countries

• Women workers constitute 50% or more of migrants in Asia and Latin America.

• Dramatic increase in migrant workers in recent years: 105 million (1985) to 175 million (2000)

• Remittances from migrant workers approached $100 billion (in 2004)

• Revenue from remittances now rivals financial inflows from overseas development assistance and foreign direct investment

Emigration Push Factors

• Inadequate employment opportunities combined with poor living conditions (e.g., lack of education, health provision)

• Political breakdown or economic dislocation (e.g., caused by conflict, environmental disaster, structural adjustment policies, mismanagement of economy, etc.)

• Discrimination (gender, ethnic or caste), nepotism and/or corruption, excluding people from employment or professional advancement

• Family breakdown (particularly illness/death of parents), compelling family members to send children away from homes to work

Immigration Pull Factors

• Destination countries’ strong demand for migrant workers

• Higher salaries and standard of living abroad

• High expectations of employment opportunities abroad boosted by global media and internet access

• Fewer constraints on travel (e.g., fewer restrictions on freedom of movement, cheaper/faster travel)

• Established migration routes and communities in other countries; established presence of recruitment agents

Law and policy trends that contribute to trafficking

• Increased restrictions on migration by countries of destination

• Deeply indebted countries encourage migration (without adequate safeguards) to increase foreign currency reserves, alleviate unemployment pressures domestically

• Efforts to attract foreign investment, entry of MNCs, by lowering local labor standards

Trafficking = opportunistic response to tension between economic necessity to migrate and restrictions on migration

Development of International Law on Trafficking

1904 International Agreement for the Suppression of White Slave Traffic

1910 International Convention for Suppression of White Slave Traffic

1921 International Convention for the Suppression of Traffic in Women and Children

1933 International Convention on the Suppression of Traffic in Women of Full Age

1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others

1975 Convention on the Elimination of All Forms of Discrimination against Women

1989 Convention on the Rights of the Child

2000 Convention Against Transnational Organized Crime

Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children

Overview: U.N. Convention Against Transnational Organised Crime

(2000)

• International cooperation treaty, focused on crime control

• Offenses covered: – participation in an organized criminal group– corruption– money laundering– obstruction of justice– serious crime (penalty of imprisonment for 4

or more years)• Three Protocols: firearms, migrant

smuggling, trafficking

Overview: U.N. Convention Against Transnational Organised Crime

(2000)

• Addresses lack of uniformity in national legislation by requiring states to criminalize organized criminal activity, money laundering, and public sector corruption

• Enhances cross-border law enforcement cooperation – improves information flows– establishes legal framework for mutual legal assistance

in investigations, prosecutions, judicial proceedings– encourages joint investigative bodies– facilitates extradition procedures– strengthens law enforcement through education and

training– contemplates a dedicated U.N. funding mechanism

U.N. Trafficking Protocol

• To be interpreted and implemented:– together with the Crime Convention (art. 1)– without altering States’ obligations under

international humanitarian or human rights laws (art. 14)

• Purposes of the Protocol (art. 2):– to prevent and combat trafficking in

persons, esp. women and children– to protect and assist victims of trafficking– to promote cooperation among States

Parties to meet above objectives

U.N. Trafficking Protocol

U.N. Trafficking Protocol, Article 3(a)

“Trafficking in persons” shall mean 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, or 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 control over another person, for the purpose of exploitation.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Criminalization of Trafficking

• States Parties required to establish trafficking as a criminal offense– as well as attempt, participation as

accomplice, and organizing or directing other persons to commit the offense

• Limited to trafficking that is– transnational– involves an organized criminal group


• An offense is transnational if:– committed in more than one State– committed in one State but substantial part

of planning, preparation or control takes place in another State

– committed in one State but involve organized criminal group engaged in criminal activity in multiple States

– committed in one State but has substantial effects in another State


• Organized criminal group:– a structured group of 3 or more persons– acting in concert with the aim of committing

one or more serious crimes or offenses established by the Convention or its Protocols

– in order to obtain financial or other material benefit

• therefore would not cover trafficking by one or two persons or trafficking conducted entirely within a country by nationals of that country

Protection of Trafficked Persons

States are required to:– protect privacy and identity of victims– provide victims with information on

court/administrative proceedings– provide assistance to enable victims’ views

and concerns to be presented/considered in criminal proceedings

– ensure domestic legal systems contain measures that offer victim compensation for damages suffered

– provide/facilitate safe repatriation of victims

Protection of Trafficked Persons

States are to consider or endeavor to:– provide for the physical, psychological and

social recovery of victims, including • appropriate housing• legal counseling and information• medical, psychological, and material assistance• educational and training opportunities

– take measures to protect witnesses (both victim and non-victim, and their relatives and others close to them) from retaliation and intimidation

– take measures to permit victims to remain in the destination country, temporarily or permanently

Prevention of Trafficking

States parties shall:• endeavor to undertake research, information and

mass media campaigns and social and economic initiatives

• take measures to alleviate factors that make persons vulnerable to trafficking, e.g., poverty, underdevelopment and lack of equal opportunity

• adopt measures to discourage demand that fosters exploitation that leads to trafficking

• strengthen border controls• ensure integrity and security of travel/identity

documents

International Cooperation

States Parties shall:• exchange information regarding undocumented

border crossings, organized criminal groups’ means and methods of recruitment and transportation

• provide or strengthen training for law enforcement, immigration and other relevant officials in methods used to prevent trafficking, prosecute traffickers, and protect trafficked persons

• cooperate to verify legitimacy of travel or identity documents

Implementation of International Counter-Trafficking Laws

• Crime Convention and Trafficking Protocol entered into force at the end of 2003.

• Crime Convention Article 32 establishes an annual Conference of the Parties to the Convention to promote and review implementation of the Convention– governments are to report on the steps taken to

implement the Convention and Trafficking Protocol– NGOs are permitted to observe the meetings– first meeting held in Vienna in 2004

• U.N. Office on Drugs and Crime provides technical assistance, programs to strengthen rule of law, policy research

• U.N. Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002) to promote integration of a human rights perspective into international, regional, and national counter-trafficking laws and policies.

Challenges to Implementation

• absence of effective enforcement mechanism in voluntary system– the United States stepping into the breach: unilateral

sanctions regime

• competing priorities among countries of destination, countries of origin, civil society organizations

• competing conceptualizations of the problem– myopia regarding prevention

• information/knowledge deficit– background facts, estimates– objective/independent assessment regarding

effectiveness of current counter-trafficking strategies

Assessing State Practices(Excerpt from U.S. State Dept, Trafficking in Persons Report

2006)



sanctions regime


• competing conceptualizations of the problem– myopia regarding prevention



Competing approaches to the problem of trafficking

Moral problem

GenderDiscrimination

LaborEconomic

Development

Public health

Crime control

Immigration

Trafficking



sanctions regime


• competing approaches to the problem– myopia regarding prevention



Conclusion

Questions and Comments?

Contact information:

Janie A. ChuangAmerican University Washington College of Law

4801 Massachusetts Avenue, NWWashington, DC 20016

Tel: (202) 274-4306Fax: (202) 274-0659

Email: [email protected]

Recommended Resources

Legal TextsUnited Nations Convention Against Transnational Organized Crime, U.N. Doc. A/RES/55/25 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,

Supplementing the U.N. Convention against Transnational Organized Crime, U.N. Doc. A/55/383

Recommended Principles and Guidelines on Human Rights and Human Trafficking, U.N. Doc. E/2002/68/Add.1

Secondary SourcesAnti-Slavery International (Elaine Pearson), Human Traffic, Human Rights: Redefining Victim

Protection (2002)Bridget Anderson & Julia O-Connell Davidson, Is Trafficking in Human Beings Demand Drive?: A

Multi-Country Pilot Study (2003) Economic and Social Commission for Asia and the Pacific (Anne Gallagher), Violence against and

Trafficking in Women as Symptoms of Discrimination: The Potential of CEDAW as an Antidote (2005)

Anne Gallagher, Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 Human Rights Quarterly 975 (2001)

International Law Association Committee on Feminism and International Law, Women and Migration: Interim Report on Trafficking in Women (2004)

International Labour Office, A Global Alliance Against Forced Labour: Global Report Under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (2005)

International Organization for Migration, Data and Research on Human Trafficking: A Global Survey (2005)

Documents

The Role of International Law in Countering Human Trafficking