A Response to Anne Gallagher by Ryszard Piotrowicz

[Ryszard Piotrowicz is a Professor of Law at Aberystwyth University]

I would like to make three points in relation to the articles by Prof. Hathaway and Dr Gallagher.
First, It seems to me that Dr Gallagher effectively refutes the basic argument of Prof. Hathaway, that the developments in trafficking in human beings (THB) have served to distract attention from what is asserted to be the much wider problem of slavery.  I do not wish to comment on the core issue of that debate but rather to focus on two further matters which are nevertheless relevant to our understanding of THB, and which do come up in these articles.
Second, I think that it is not always helpful to insist on THB as a human rights violation. THB is fundamentally a private enterprise, i.e., a tort and a crime.  In the absence of State involvement or complicity, where is the human rights violation?  Of course, the State has obligations towards victims but these really occur after the person has been trafficked (e.g., obligations towards appropriate care and support) or else to prevent future trafficking (possible international protection obligations).  It is not the THB itself, but the aftermath, that gives rise to State obligations for the rights of victims.  Of course I accept that the State has an obligation to ensure rights for all those within its jurisdiction – which it does through passing appropriate legislation which is then enforced.  Dr Gallagher says there are plenty of human rights instruments that address States’ obligations regarding private exploitation (823).  I agree, but the actual THB is not normally a breach.  That is why I prefer the term “human rights approach” to THB – this can acknowledge the human rights dimension of THB.  I think there is an inherent good in calling THB what it is: a serious crime.  That does not demean the victims; nor does it deny their human rights (where relevant).  Dr gallagher says that the public/private split has been eroded and that it is not credible for States to deny an obligation to deal with THB just because it is a private activity (824-5).  I agree, but this is because States have an international obligation to tackle THB.  The THB nevertheless is not the fault of the State (usually) and, to that extent, one can maintain the public/private distinction.  I nevertheless agree with Dr Gallagher’s point that desirable changes have been effected, even if human rights law has not always been the medium of change (847).
Third, specifically on refugee status for victims of THB – it is clear to me that the law of international protection is very important in assessing States’ obligations with regard to THB.  But this will be more with regard to subsidiary/complementary protection than refugee status. At page 844, Dr Gallagher focuses on refugee status while acknowledging that it may have limits.  In actual fact, normally the only way potential victims of THB will qualify is if they are members of a particular social group.  This is possible but I don’t think it will occur very often.  In particular, it might apply to those in the foreign State who fear return to their home State because of risk of re-trafficking (and who therefore might argue that their status as victims of THB, which is an immutable fact, like being left-handed, or blue-eyed) is something they have in common with others beyond the mere fear of persecution, hence making them MPSG.  So the risk will be with regard to future danger, of course.  How many people will be in a foreign country, who have never been trafficked before, but fear being trafficked if they go home? Surely the real risk is that of re-trafficking?  In this sense, even if Prof. Hathaway is right, that anti-THB law has been used to promote border control laws in destination countries, that does not matter here from a protection perspective because those needing international protection have, despite apparent legal obstacles, ended up in a foreign country.  They have probably been trafficked there.  The border controls have not stopped this.  All that said, the more likely obligation of the destination State will probably be subsidiary/complementary protection.