The Human Rights Quagmire of ‘Human Trafficking’

James C. Hathaway, “The Human Rights Quagmire of ‘Human Trafficking'”. Virginia Journal of International Law 49:1 (2008), 1-59.

Abstract:

“Support for the international fight against “human trafficking” evolved quickly and comprehensively. The campaign launched by the UN General Assembly in December 1998 led to adoption just two years later of the Trafficking Protocol to the UN Convention against Organized Crime. U.S. President George W. Bush was among those particularly committed to the cause, calling for collective effort to eradicate the “special evil” of human trafficking, said by him to have become a “humanitarian crisis.” One hundred and twenty-two countries have now ratified the Trafficking Protocol, agreeing in particular to criminalize trafficking and to cooperate in investigating and prosecuting allegations of trafficking. The antitrafficking cause is not simply of interest to states; it has been firmly embraced by prominent feminists, leading international human rights organizations, and all key international agencies.

This is not to say that there is universal agreement on the specific means adopted by the Trafficking Protocol. The Trafficking Protocol is most commonly criticized for being overly focused on criminal investigation and prosecution. In particular, it is said that the accord fails meaningfully to protect the victims of human trafficking, who normally are granted access only to discretionary relief under processes that may not be explained to them. Indeed, only a minority of states has adopted mechanisms even to consider the protection of trafficked persons, and these programs generally offer no more than strictly provisional assistance. The Trafficking Protocol’s drafters, moreover, rejected a proposal to require that repatriation of trafficked persons be “voluntary” in favor of a duty on the part of countries of origin to “facilitate and accept” their trafficked citizens back “without undue or unreasonable delay,” albeit “with due regard for the safety of that person.” Similar inattention to the human dimension of trafficking is said also to be evident in the Trafficking Protocol’s failure to move beyond rhetorical support for efforts to address the social and economic phenomena that make people vulnerable to traffickers in the first place.

Yet it is striking that despite these concerns, there has really been no fundamental, overarching criticism of the effort to stamp out human trafficking as a worthy objective and, more specifically, as an appropriate focus of international law. At best, critique of the Trafficking Protocol leads to calls for enhanced commitments to address the “root causes” of trafficking – in particular, global socioeconomic inequality and the various forms of marginalization that make subgroups particularly vulnerable to trafficking and/or to demands that the protection of the victims of trafficking be made either mandatory or at least more substantively durable. In essence, the concerns expressed accept that the fight against human trafficking could and should be retooled in a way that enhances its overall net positive contribution to the human rights arsenal. Indeed, with human trafficking having been equated by virtually every faction as a clear moral wrong, who would want to argue against the marshaling of international resolve and resources to bring it to an end?

My own view, in contrast, is that the fight against human trafficking is more fundamentally in tension with core human rights goals than has generally been recognized.”

Full text available here.

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