The Human Rights Quagmire of “Human Trafficking”

[Professor James Hathaway is Dean and William Hearn Chair of Law at the Melbourne Law School]

It is doubtful that the advent of the Trafficking Protocol deserves anything approaching the nearly unanimous support it has received from those committed to the promotion of international human rights. To the contrary, the Trafficking Protocol has enabled governments to hive off a tiny part of the global problem of slavery as the focus of international attention and resources, leaving the overwhelming majority of slaves to depend on largely irrelevant and ineffective supervisory structures. Governments invoked the Trafficking Protocol to recast the duty to end slavery as best pursued through antitrafficking efforts, allowing states to claim the moral high ground in the fight against slavery despite the irrelevance of the new commitments made to most slaves.

But the antitrafficking effort is objectionable not just because it promotes the highly selective privileging of a small subset of the slavery problem. At least as important, the fight against human trafficking has also resulted in significant human rights damage by providing a context for developed states to pursue a border control agenda under the guise of promoting human rights. The Trafficking Protocol and its companion Smuggling Protocol have set a transnational duty to end all forms of unauthorized border crossing and conscripted states in regions of origin to abet the developed world’s efforts to stymie international migration, in particular by routinized implementation of generic deterrence schemes.

Broad brush deterrent schemes of this kind tend perversely to promote human smuggling—and even trafficking—since they make unassisted migration that much more difficult, even as they do nothing to open up channels for authorized migration needed to meet evident demand for foreign labor. Perhaps most gravely, the Protocols’ insistence on the intensification of generalized constraints on transnational movement promotes new barriers to the departure and safe passage of refugees, rendering illusory in practice the formal commitment of governments to ensure the exemption of refugees from rules prohibiting unauthorized entry or presence.

There are indicia that at least some powerful governments intended all of these results and viewed the antitrafficking effort as an extraordinary opportunity to both refocus their antislavery commitments in a more politically and economically comfortable fashion and aggressively to pursue border control (including refugee control) strategies under a human rights banner. Other, less influential, states often had “dirty laundry” to hide on the antislavery front, making the narrowing of international attention to slavery politically palatable to them as well. And despite initial efforts by many poorer countries to resist the antimigration aspects of the treaties, they were ultimately persuaded to accept most of the developed world’s terms in exchange for promises in principle to ramp up funding not only for development assistance, but also for enhanced border control and other security initiatives in partner states.

The more vexing question is why most nonstate human rights actors bought into the antitrafficking agenda. In part, the narrowly framed antiinstrumentalist conception of human rights embraced by key players—an approach very much more limited than the pluralist understanding of human rights codified in international law—explains the lack of attention to the full range of human rights concerns. There is, in particular, no evidence that leading nongovernmental actors engaged in anything approaching an analysis of options predicated on nondiscrimination principles. This raises the very important challenge of defining the ethical responsibility of advocacy groups possessed of de facto power within the international system, but formally accountable to promote only a part of the human rights agenda.