A Response to Jean Allain and Ryszard Piotrowicz

I begin by thanking Ryszard Piotrowicz and Jean Allain for agreeing to take on the somewhat delicate task of commenting on my critique of James Hathaway’s article.  I am sure they will not be offended by my expressing sincere regret that Professor Hathaway himself declined to participate in this symposium.

Neither respondent challenges (or seriously interrogates) my central conclusions: (i) Hathaway has misrepresented the nature and scope of the legal regime around both slavery and trafficking and, in relation to the latter, severely underestimated its impact and potential; (ii) his proposal for an alternative system of protection based on the international legal prohibition on slavery is highly problematic, based on an outdated understanding of the relevant structures, and likely unworkable; (iii) there is no evidence available to support his allegation that powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; (iv) there is no evidence available to support his contention that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the plight of asylum seekers and refugees; and, (v) the proposed ‘quagmire’ of human trafficking is a fallacy.  To suggest that efforts to stamp out trafficking are in opposition to core human rights goals is to misunderstand, completely, both the nature of the phenomenon and the central place of human rights in any effective and credible response.

Both respondents nevertheless raise questions on several aspects of my critique. The following counter-response is provided with an accompanying observation that the issues raised do not call into question any of the conclusions listed above.  Ryszard Piotrowicz opines that trafficking may be best approached as a tort and a crime rather than as a human rights violation.  Certainly at the national level, this will often be the preferred approach, not just for trafficking, but also for many other human rights violations for which criminal or civil law may be invoked including discrimination and torture.  When it comes to righting wrongs, a functioning justice system will almost always offer superior odds to its international or regional equivalent.  That conclusion does not negate a central place for international law, including international human rights law, in providing impetus, authority (including legal justification) and structure to an effective national response.  International law also furnishes the foundation upon which the critical secondary rules of responsibility can be identified and applied.  In the present context, such rules affirm a range of obligations on States – not just to protect, support and provide remedies to victims, but also to investigate and prosecute trafficking cases with due diligence; to act against public sector complicity in trafficking; to cooperate with other States; and to prevent future trafficking.

As a result of his involvement in the drafting of UNHCR’s Guidelines on the issue, Piotrowicz is well-placed to warn of the limits of international refugee law for those who have been trafficked.  He is indeed correct that subsidiary/complementary protection will generally be of most relevance to trafficked persons.  As I noted, the very modest advances that have taken place are ultimately as constrained as international refugee law itself and will likely only permit a small fraction of individuals moved into exploitation across national borders to secure the protection they need (845).  In the end, this does not detract from the finding that developments in international law around trafficking do not appear to have further damaged an already deeply compromised international system for protection of refugees.

Regretfully, Jean Allain’s response does not address the issue of trafficking, rather focusing on one sub-aspect of my critique: the definition of slavery in international law.  I am happy to have provided Dr. Allain with the opportunity to canvass his recent, extensive and admirable scholarship in this area.  As my article makes clear, the much-overdue release of the travaux preparatoires to the Slavery Conventions has provided a new and important dimension to the question of what is slavery.  The decision of the Australian High Court in R v. Tang (which I also cite) represents another step forward in clarifying the parameters of slavery in contemporary international law.  We are indeed on the cusp of a new era.

It is with a considerable measure of gentleness (and perhaps a dash of scholarly pride) that Allain excuses Hathaway’s manipulation of the legal definition of slavery on the basis of the latter’s lack of access to the travaux preparatoires.  I disagree completely.  The debate over the substantive content of the international legal norm around slavery did not begin with the travaux preparatoires and will likely not end with them.  My principle objection (strongly buttressed by, but ultimately not reliant on, the travaux preparatoires) was to Hathaway’s uncritical adoption of an understanding of slavery that did not even match the language of the universally accepted international legal definition.  I also objected to his failure to take account of recent developments that were a matter of public record.  These included advances within international criminal law on the closely related issue of enslavement: advances that affirmed, independently of the travaux preparatoires, the application of the relevant prohibition to both de jure and de facto slavery and that provide clear warning against the kind of popular, expansionist conception of slavery espoused by Hathaway and increasingly favored by crusading legal scholars, politicians, social campaigners and the mass media.

International law is burdened with an unedifying record when it comes to dealing with private exploitation.  Amongst those of us working (literally) in the field, there is widespread agreement that forced labor, forced and otherwise exploitative prostitution, child sexual exploitation, coerced marriage and debt bondage are certainly not going away and are quite probably getting much worse.  The international community is struggling to deal with new waves and even new forms of profiteering.  Viewed from that perspective, the requirements of an international legal framework are clear: an unambiguous definition of the problem; an equally sharp identification of core State obligations; and effective means of monitoring and encouraging compliance.  After decades of wasteful prevarication not particularly challenged by the academy, that goal may finally be in sight.  Certainly the Trafficking Protocol, and its associated legal developments which I have documented, provide justification for cautious optimism. I respectfully submit that at this important juncture, the appropriate task of the international legal practitioner is a relatively modest one: our job is to document, to analyze and to explain the law, including its weaknesses, to those who, (in the words of d’Aspremont, note: 228) are engaged in actually using it.  We do our profession and our most important constituents a favor by remembering that, at the end of the day, it is the law that properly directs the legal scholarship, and not the other way around.