The Role of International Law in Countering Human Trafficking

1. The Role of International Law in Countering Human Trafficking Janie A. Chuang Visiting Assistant Professor of Law American University Washington College of Law

2. Webinar Overview • Dimensions of human trafficking • International legal developments • Current challenges in implementation of international counter-trafficking laws

3. 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

4. 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

5. Background Statistics(ILO Global Alliance Against Forced Labour Report, 2005) Regional Distribution of Trafficked Forced Labourers

6. Estimated average annual profits (ILO Global Alliance Against Forced Labour Report, 2005)

7. 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.

8. 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.

9. 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 Trafficking vs. Migrant Smuggling

10. 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

11. 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

12. 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

13. 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

14. Development of International Law on Trafficking • International Agreement for the Suppression of White Slave Traffic • International Convention for Suppression of White Slave Traffic • 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 • Convention on the Elimination of All Forms of Discrimination against Women 1989 Convention on the Rights of the Child • Convention Against Transnational Organized Crime Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children

15. 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

16. 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

17. 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

18. 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.

19. 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

20. Criminalization of Trafficking • 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

21. Criminalization of Trafficking • 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

22. 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

23. 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

24. 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

25. 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

26. 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.

27. 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

28. Assessing State Practices(Excerpt from U.S. State Dept, Trafficking in Persons Report 2006)

29. 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

30. Competing approaches to the problem of trafficking

31. 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 approaches to the problem • myopia regarding prevention • information/knowledge deficit • background facts, estimates • objective/independent assessment regarding effectiveness of current counter-trafficking strategies

32. Conclusion Questions and Comments? Contact information: Janie A. Chuang American University Washington College of Law 4801 Massachusetts Avenue, NW Washington, DC 20016 Tel: (202) 274-4306 Fax: (202) 274-0659 Email: jchuang@wcl.american.edu

33. Recommended Resources Legal Texts United 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 Sources Anti-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)